The Permission Culture

Being the general counsel for the largest online rater and reviewer of lawyers, I get my share of heated correspondence from lawyers.  And one common question is why we didn't ask permission before posting an attorney's licensing details online.

It's a vexing question.  Not because the substance of the question is difficult to answer - rather, it's difficult to answer in a way that is not overly rude and/or condescending.  Why? Because it should be blindingly obvious that we don't need their permission.  

Asking for permission implies the conferring of a right not otherwise present.  Decorum also demands that it be limited to those areas where one plans on honoring the denial of permission.  As we have a clear First Amendment right to publish, and no intention of only publishing material for which consent has been granted, it would be both pointless and in bad form for us to ask for permission.  

I wonder, however - as I see the latest round of the NFL trying to prevent use of the term "Super Bowl"without permission (note: I did not obtain, nor ask for, permission to refer to the SUPER BOWL).  Super Bowl, Super Bowl, Super Bowl  . . .

Anyway, where was I?  Oh, yes - this NFL silliness (SUPER BOWL!!!), along with the consistent drumbeat I hear from lawyers over permission, raises the question of whether we lawyers have too strong of a bias for permission.  Just as lawyerly training can lead to a blinkered desire to mitigate every risk, regardless of cost or lost opportunity, does our reliance on case law and statute tend to immobilize us from taking action unless there is clear precedent saying "yes, really, it's OK?" To think that we can't do anything out of the ordinary without permission? My experience would say that it does.

This is a problem, because it leads to situations like the ridiculous demands for permission that I get, or the ludicrous position taken by the NFL and other trademark or copyright holders that even clear-cut cases of fair use are infringing without permission.

A culture of permission-only is a poorer culture all around.  And it's bad for lawyers and their clients, as asking for permission in cases where it's not required leads to confusion and missed opportunities.  Let's limit permission to its intended uses: when we're seeking a dispensation (by asking for a right), or granting one (by letting someone else decide whether we get to exercise a right we already have).

AT&T - T-Mobile Final Thoughts

Monday night, AT&T and TMO announced their $39B merger was dead.  The only surprise was that they did it so quickly; as I've written before, there was a real danger that egos would prevail and AT&T would distract itself by fighting a losing battle with the regulators rather than turning its attention to competing with Verizon.

I went on CNBC's Squawk Box Tuesday morning (sorry; no video link) to offer my thoughts on whether AT&T had made a bad bet.  I'll repeat and expand what I said there:  It was a risky bet - which is why TMO, advised by my former counsel at Wachtell, insisted on the mother of all break-up fees.  But it was a bet worth taking.

The good news for AT&T is that they aren't chasing here.  They can now turn to other options, whether it's acquiring DISH, buying spectrum or capacity from Clearwire, or doubling down on a wi-fi offload strategy.  None are ideal, but they've got to play the cards they were dealt.

Another topic that came up in my interview yesterday was whether scuttling this deal was good for consumers.  It's easy to see why it would be; TMO gets to keep playing to the low end, and there should be more price competition.  But that's also a facile and short-sighted point of view.

This timely WSJ article today touches on, at a high level, some of the fundamental economic headwinds that face U.S. wireless carriers.  It's a vast country, and providing the coverage, capacity and data speeds that consumers want is incredibly costly.  Carriers spent $25 billion on their networks last year.  Only AT&T and Verizon got a return on capital.  Think about that, and what it means over time for consumers.  We're paying for marginal price competition today with hobbled companies and under-investment tomorrow.  A cash-losing Sprint or T-Mobile can't innovate, can't bridge the "last mile" or the "digital divide", and will ultimately fail - leaving the monopoly or duopoly DC is so fearful of - if they can't afford to invest capital in their network.  

So no, the FCC and DOJ did consumers no favors long-term in preventing this deal.   It's time they updated the tools in their "preserving competition" toolbox for the reality of today's wireless industry.

AT&T & T-Mobile Reaching the Final Act

There was a terrific piece in the Washington Post at the end of last week, detailing AT&T's lobbying strategy and approach to win approval of its $39B acquisition of T-Mobile.  It's well worth a read, detailing as it does the combination of hubris and overreach that may have sunk the deal's chances.

The acquisition was a risky bet to begin with, but one takeaway for would-be acquirers must be this:  If you're going to tout social benefits (in this case, the creation of 100,000 new jobs) in your lobbying efforts, be prepared to back up your claim with the solidest of solid analysis.

Because if you can't, then the rest of your arguments - and make no mistake, AT&T had several good ones re the benefits of this merger - are going to suffer badly by association.  You'll have just handed those opposing your deal the club with which to smash your head in.

And today, AT&T has joined the DOJ in asking for a stay of the antitrust trial it had been so ardently pushing forward.  This no doubt foretells the deal being scuttled or significantly re-arranged.

Here's one vote for the former - I'd much rather see AT&T in full-throated competition with Verizon than distracting itself trying to put together a less-than-optimal deal.

AT&T, T-Mobile & Opportunity Cost

AT&T's acquisition of T-mobile is on the rocks, and it looks like things are going to get uglier before everything settles out.  As I mentioned in this CNN article, I'm convinced the deal is dead. My belief isn't driven by any particular dislike for this deal; in fact, I think it makes a lot of sense.  But it was a big gamble that regulatory approval would come through, and sometimes things don't work out.

The problem here is moving on crisply.  A major consolidating transaction is distracting enough; but trying to push one through the regulatory bog AT&T is facing?  The DOJ has sued to block the merger.  The FCC has referred the matter to an administrative hearing - a near-unheard of event.  AT&T has responded by taking its ball and going home, pulling back its transfer application in the hopes that it can refile once it works things out with DOJ.  All of this spells additional delay and uncertainty.  Neither AT&T or T-Mobile can move forward fully until the merger is resolved, one way or the other.  In the meantime, Verizon can keep taking market share steadfastly, not burdened down by distracting strategic considerations.

It's an object lesson in one of the dark sides of inorganic growth.  Yes, many mergers fail to deliver value.  But even those mergers that likely would work out can backfire if they take too long to consummate.  Company leadership may say all the right things about execution, but merger planning will consume resources and narrow strategic considerations for as long as the deal is pending.  Telecom mergers - with joint review via two separate federal agencies - are inherently time-consuming.  Combine that protracted merger with additional delay, a rapidly-changing industry and a tough competitor leading the market, and it's a recipe for disaster.  Doing a deal with T-mobile probably made all the sense in the world when AT&T drew it up a year ago.  But now that the knives have been drawn, and the best hopes for the merger have dimmed, AT&T must ask the hard question, and ask it soon:  does it continue to throw good money after bad?  For while AT&T is on the hook for a $4 billion breakup fee, there is a very real cost to letting pursuit of a merger prevent full-throated competition in the marketplace with Verizon.

Should Legal Report to PR?

OK, it sounds ridiculous, but consider: Any company of size employs a public relations staff. It's how you acquire, manage and - hopefully - shape earned media. Public relations is taken very seriously, and invested in accordingly. A savvy PR staff can generate an outsized return on an investment in relationships and managing the company's image in the press.

Why then, do companies - like Sony Ericcson - continue to allow their legal departments to undermine that PR work?

Imagine the conversation if the Sony Ericcson legal group reported to PR:

PR: Wait, you want to do what?

Legal: There's a guy running a blog that has the name of one of our products in it. And get this - the domain he's using has our product name in it! We can't have that. We're going to threaten him with a UDRP action unless he shutters the blog and hands the domain to us.

PR: Haven't we talked about this? If there's someone hating on us, it's usually best to just ignore them? You know, Streisand Effect?

Legal: Oh, he's not a hater. It's a fan site.

PR: You want to take down a fan site? Someone is writing nice things about us for free and you want to stop them?

. . . you do know that we spend nearly $1 billion a year on advertising, right?

. . . and that this blogger is giving us free advertising?

. . . and that when he's forced to shut down he, and the 4chans and TechDirts of the world, are going to start saying all sorts of nasty things about us and how heavy-handed we are?

. . . which is pretty much the exact opposite of this department's primary goal?

But you're the lawyer - there must be a very good reason for going after this fan. Is he confusing lots of our customers?

Legal: No, it's clearly a fan site. But he's got an affiliate link where people can buy our products.

PR: Uh . . . we're kind of in the product selling business. So his site must be messing with our SEO, outranking our sites on Google?

Legal: Not yet, but it's a .net domain.

PR: It's a .net domain? You do know that a .net domain is the internet equivalent of second-hand store on a back street, right?

Legal: Look, the issue is that there's a chance that this use of our product name could dilute our brand and cause us to lose the trademarked name of the product. We've got to defend our trademark!

PR: OK. So stacked against the 100% chance that your letter will cost us - at a minimum - hundreds of thousands of dollars in negative publicity, what's the risk that this site being out there causes us to lose our trademark?

Legal: Oh, that would never happen. But it sets a bad precedent.

PR: [facepalm]

The Black Hole of Customer Complaints

The Bizzle writes about the role of corporate counsel in occasionally having to deal with real live customer complaints. I had to chuckle; there is much to recognize there.

When I was GC of a regional wireless company, I was deemed the "black hole" of customer complaints, the place that those too crazy or persistent for even our executive escalation team to handle would be sent. Like the guy who would send 27 page faxes to us every day, copying the regulatory agencies and every government official he could think of. Or the customer who sent in a package containing his bill (crumpled up into a tight little ball), a foot-long dowel and a tube of KY Jelly.

What I found was that - much like the Bizzle's experience - for the vast majority of these complaints it was a matter of listening. Listening, because there was nothing else I could offer. Any complaints amenable to resolution would have been dealt with long before they reached me. So I listened, tried not to argue too much, and told them "no". "No," over and over again. No, we would not fundamentally change our business processes. No, we would not pay them millions of dollars for a perceived slight. No, we would not humbly and abjectly go out of business.

And - most importantly - No, there is no one to escalate to beyond me.

These complaints were stuck beyond the event horizon of my "Office of the General Counsel" black hole. They could not go forward and vent their spleen to our CEO, nor backward to make another run at our customer care staff. All further communication would be to me, and me alone. Eventually, they would exhaust themselves and move on to whatever was next in their lives.

It was a clean process, if not always the best use of a GCs time. It required listening, but never for too long; the judicious use of calendar management and setting expectations that I only had time to talk for so long at a spell. But it was a far better process than having the CEO take these calls, and it provided some comfort that if one of these people had a legitimate claim, it would find the legal department while something short of a lawsuit could still make things right.

Unsurprisingly, this is a big part of my current role. Being in the business of publishing information, ratings and reviews of attorneys, we field a number of complaints from those we profile. This is not about paying customer escalations, but rather all about unhappiness and control from a handful of those we've published information about. Many of those have been interesting conversations, and some have even led to changes in our operations. But the vast bulk of them involve me listening and saying that oh-so-familiar word: "No." And because these are attorneys, I often must follow my "no" with an explanation of why suing us would be a bad idea. I have anecdotes and correspondence from these conversations that would fill a book. But that, readers, will have to wait for another day.

The Narcissism of Revolution

"Occupy Seattle", a thinly-attended offshoot of Occupy Wall Street, has been going on across the street from my office this last week. What do the "occupiers" want? If you view this rant narrated by Keith Olbermann (shredding whatever scraps of integrity he might have left), they want America to know that corporations are evil.



Don't get me wrong - I like a good protest. Lock yourself to the gates of nuclear plant, protest the war, demand equal rights, whatever. But here are the problems I have with this protest:

1. It's infantile and wrong.

Have corporations visited these evils upon us? Of course they have. But corporations have also generated jobs, enabled innovation and powered an unprecedented increase in the standard of living for Americans. Corporations have developed the tools used by the protestors, and employ most of their parents, making it possible for them to protest. And let's face it: if all you want to do is run out a one-sided diatribe, a similar litany could be employed against labor unions, public school teachers, religions - or the entire human race.





















2. It's non-actionable.

What exactly would the occupiers do about the evil corporations? Regulate what they can pay their employees? How they can spend their money? How much profit they're entitled to earn?

Why yes, if you listen to many of the occupiers. They want public ownership of corporate assets. They want redistribution, Soviet-style. Never mind the experience of the last 80 years. Never mind the spectacular abuses and failures of centrally-planned economics.

3. It's narcissistic.

Many of the OWS protesters compare themselves to democracy activists in the middle east. America may have issues – we’ve got an overreaching security state, we waste tens of billions of dollars on a spectacularly failed war on drugs, we pay too much for middling health care outcomes, and we aren’t willing to tax ourselves enough to pay for all the goodies we want. But these issues are nothing - nothing - compared to what people in Egypt, Tunisia, Syria and Yemen faced or are facing.

It's embarrassing that the OWS crowd thinks getting jailed over a hippie campout is the moral equivalent of facing bullets while standing up for democracy in Cairo or Damascus.

4. It's entitled.

At the center of these complaints is a failure to take accountability. No one forced you to take out that over-leveraged mortgage, or go $100K in the hole to get a college degree. We all have choices, and we own the consequences of those choices. And don't forget that many of the problems plaguing our state and local governments stem from the rapacious appetite of government employee unions, and the failure of our leaders to protect taxpayers from the ruinous pension obligations they've signed up for.

Joe Biden said Occupy Wall Street is like the Tea Party. And he’s right. Just like the Tea Party – with its “keep your hands off my Social Security/but don’t tax us” message - OWS suffers from magical thinking in its muddled blend of tired lefty tropes.

Those of us in the reality-based community don't have patience for such indulgent, pointless crap.

Do Female Lawyers Thrive In-House?

The ABA Journal asks the question of whether female attorneys are more successful in corporate jobs than in law firms due to corporations placing a higher value on female lawyers' "people skills."

The article then sloppily compares hard data (females comprising 15% of equity partners at large law firms) with anecdote ("some women lawyers are suggesting that female attorneys do better, overall, when working in-house").

Oh, but data's not hard to find. It turns out that of Fortune 500 General Counsel, women comprise (drum roll, please) . . .

18.8%

Huh. That's only slightly better than the equity partner rate.

Here's two things I know: First, people skills are important in corporations, far more so than in law firms. And second, there are plenty of attorneys with bad people skills. Lack of people skills is an equal-opportunity problem. It's why attorneys score in the 13th percentile for sociability (or as one managing partner at a large firm once told me, the 8th percentile if you control for rainmakers).

The data above would tell us that women lawyers have only marginally better people skills. And that margin could likely be explained away by the job style and hiring difference between equity partners and Fortune 500 GCs.

Can we stop falling back on counter-productive, fluffy gender stereotypes like "better people skills" - especially when the data doesn't bear them out?

Bethesda vs. Minecraft

It's been a while since I've posted about trademark bullying, but Christ, it seems like it's everywhere. Proctor & Gamble is fighting with a Connecticut mom over the name she's chosen for her line of soap for tween girls ("Willa") because it sounds kinda like P&G's "Wella" brand. I've got some nimrod attorney demanding "one . . . MILLION . . . dollars" for using his name on our site (it's, uh, a legal directory. Of lawyers.).

But my new favorite for sheer cluelessness is Bethesda games going after Markus Persson, the creator of Minecraft. Bethesda worries that Persson's new game, Scrolls, might be confused with Bethesda's "Elder Scrolls" line of games. Never mind that no one would ever confuse one of Bethesda's games for one of Persson's. Or that the "Elder Scrolls" is a simply a postscript to the title of each Bethesda game.

What's really appalling here is how Bethesda is letting its lawyers crush them.

Despite possessing god-awful graphics, Minecraft is popular beyond belief. Offering up an open world with no structured gameplay, it provides a level of depth and creativity not found in any other game. Millions and millions and millions of people have flocked to it. My son and his friends are obsessed with it.

By going after Persson (who goes by "Notch"), Bethesda has aligned itself against all of these millions of ardent fans. It doesn't matter if they win the court battle and get Notch to change the name of the game; they've already lost the PR battle.

And of course, they didn't need to do this. Their lawyers may have told them that they need to "defend their intellectual property." That's bunk. Walking through all of the options and the PR implications of taking this action - particularly against a small or well-loved business - has got to factor into the equation.

I was talking to a video game journalist (!!) a few weeks back who told me that many of the gaming companies are known for being ineptly run. One sure-fire way to be run ineptly is to listen too uncritically to your lawyers. We'll see how much it costs Bethesda to learn that lesson.

Politics and the Workplace

Several people wondered why I chose a political example for my post about negotiating with madmen. After all, conventional wisdom is that politics shouldn't be mixed with work, right?

And I think that point is correct - if your version of politics is the kind of single-issue advocacy, "principle-and-the-rest-be-damned" or magical thinking that seems to characterize so much of our political discourse. Best to keep it to yourself to avoid coming off as a crank, or someone with some gaping holes in their ability to reason.

But if you are someone who thinks about politics and policy, there's nothing like hashing those ideas out with others at work. Some of the most enjoyable and challenging political discussions I've had have come up this way. Why? Because in the workplace, you're more likely to run across smart people who are approaching these problems from a different perspective (as opposed to solving the world's problems for the umpteenth time with your like-minded college friends).

What's more, as our public political discourse has become more polarized, it's important that people call out the insanity. So to be clear: I don't consider the question of whether the Treasury needs to raise more revenue to be a political one. Rather, it's a self-evident proposition. Revenues are running at a level of GDP (15%) we haven't seen in 60 years. This low level of revenue is supporting a much greater swath of services than existed in the 1950's. While it is an equally self-evident proposition that entitlement spending needs to be cut, there's simply no way our modern industrial democracy can function the way Americans expect it to on a budget of 15% GDP. The political questions include how much revenue needs to be raised (and in what ratio to cuts in spending), in what form (higher taxes for the wealthy, comprehensive tax reform, etc.), and what the ultimate GDP target should look like (history and economics suggest 18-21%).

The grown-ups in the room know this and are asking these questions. There's a lot of work to be done to figure out what the ratio of revenue to cuts should be. My view is that it should be about a 1-2 or 1-3 ratio, but others I respect have suggested we could go as high as a 1-6 ratio.

So it was disappointing to see that every GOP candidate, when asked at last week's debate if they would support raising revenues at a 1-10 ratio of cuts, said they would not. That's not reality. It's not governing like an adult. We need to have a real discussion about how to change our tax code, raise more revenue, and make some fundamental changes (and cuts) to entitlement programs.

And there's no reason to rule out the workplace in having that discussion.

Negotiating with Madmen

Very few deals are truly "take it or leave it." And those that are require order-takers, not deal negotiators.

But every now and then, your counterparty to a negotiation will take this nutty "my way or the highway" position. Either because they misperceive their leverage, figure there's no cost in asking for the moon, or are just plain bonkers, they'll refuse to engage in the process of compromise that lies at the heart of every successful deal.

This isn't usually a very effective negotiating tactic. Experienced people will simply take the "highway" option, pack up and walk from the negotiation. And if you didn't really mean to give the ultimatum, and have to go crawling back to get talks going again, well . . . it's pretty obvious what that does to your negotiating leverage.

In order to do so, you've got to have an alternative - another competing deal, or a willingness to simply let a bad deal go by.

And this is what bothered me so much about the "debt limit deal" worked out between the White House and Congress. Obama assumed he was dealing with responsible counterparties, when he reality he had loonies on the other side of the table. Now, maybe the GOP wasn't really ready to let the US slip into default, but they certainly gave the impression of that - and in economic matters, impressions of what a government is capable of doing matter, a lot.

The first "my way or the highway" ultimatum was the GOP insistence that no deal for deficit reduction would involve increasing revenues. This should have been met with a response along the lines of "look - if you guys aren't going to take the business of governing seriously, these negotiations are over. I'm just going to ignore the debt limit and get back to work."

Messaging like that would have sparked outrage on the right of course, but it's a valid position both from a policy perspective (the debt limit conflicts with laws authorizing expenditures) and a strategic one (forcing the Republicans to choose between negotiating in good faith and going to court to force the US into default). But most importantly, it would have clarified the issues and let us know whether a meaningful deal could really be had.

Obama may have calculated that the threat of default was enough to restrain the right, and he may been correct, to a point. The problem is, all he could wring out with that weak piece of leverage was a face-saving mess of a deal that does little to address what's wrong with our economy. And we got it for the cost of undermining confidence in the United States.

It's an object lesson in the merits of sharpening the edges of a deal early on. But to do so, you've got to be willing to walk when the other side starts talking crazy.

Reverse Synergies

Amazon’s acquisition of Woot! this past summer marked the all-time best letter from a CEO announcing his company’s acquisition, as well as the infamous “We Got Acquired by Amazon” sock puppet monkey video:



Lots of people love Woot; the attitude is fun and refreshing, and they DO have plenty of great deals. It’s not hard to see why Amazon saw an attractive acquisition opportunity.

One wonders, though, if the synergies analysis for the Woot acquisition included the impact on Amazon of having to remit sales tax in Texas (Woot is based in Austin). Because Texas just submitted a bill for $269 million. That’s a heckuva lot more than what Amazon reportedly paid for Woot.

In fairness, this is the culmination of a long-running dispute between Amazon and Texas over sales taxes. But owning Woot sure isn’t going to help Amazon’s argument that it’s not responsible for remitting Texas sales tax.

Whoops.

Vote on Oracle's Next Meal

The beast from Menlo Shores has an insatiable appetite, gobbling up companies large and small. Notables like Peoplesoft and Sun Micro have fallen to Larry Ellison's behemoth in recent years - so who's next?

Stephen Jannise, an ERP software analyst who follows Oracle, has taken a stab at answering that question, and invites your vote on who Oracle is likely to next set its hooded gaze upon.

Another GC Weighs in on Outside Counsel

Great post from Richard Russeth: "If Nordstrom's Was A Law Firm, I'd Give Them All My Business: 7 Mistakes To Avoid With Your In-House Client."

Terrific advice for attorneys seeking long-term corporate clients, or wondering why their clients tend to "stray." I would overlay this with previous points I've made about the importance of outside counsel offering business-focused advice, but these issues of responsiveness are so important - and such low-hanging fruit - that it's surprising more attorneys can't figure them out. I especially like rule #5.

Deal Deliberations

Fred Wilson has a post up regarding Foursquare's recent funding round, defending the lengthy process taken by the startup. What started as financing discussions turned into acquisition talks, then ultimately returned to financing as Foursquare decided they'd rather grow organically than cash out now.

That's a respectable, even admirable, choice. It's not without risk, but it's good to see a company swing for the fences. And while I have often urged the virtues of speed in getting deals done, I agree with Fred that Foursquare did the right thing in taking their time through this process.

The distinction lies between the time taken to evaluate alternatives and the time taken to button the deal up once the company has made its choice. During the evaluation/auction phase, the risks of waiting are likely to be heavily outweighed by the benefits of seeing things through. That may mean getting to the best acquisition deal, or arriving at the informed decision to move forward alone (or with new financing).

However, it's once that decision has been made that things need to be moved forward with haste. Even if you haven't chosen your partner and an auction still persists, once the decision to do one type of deal or another is in place it's time to race for the finish. Why? Because at this point the risk scenario is flipped. The risks attendant with delay - new competitors emerging, changes in the macro environment, etc. - strongly outweigh any potential benefits of waiting. This doesn't mean not negotiating hard, but it does mean not allowing any delay due to lawyerly handwringing or people not being willing to work around the clock to get the deal papered.

Or as someone else put more memorably: "Only one thing matters in this life: Get them to sign on the line that is dotted."



I don't know how long it took Foursquare to get their financing closed once they'd made the decision to go that route, but if it took more than a couple of weeks that would be cause for criticism.

Not, however, the time they took to reflect on their options and make the choice between selling now and moving forward independently.

Straight Outta Law School

Hewlett Packard is now experimenting with hiring in-house counsel directly out of law school. It's an unorthodox move, but makes sense for a company of HP's size. They've got the volume of grunt legal work that a first year is suited to do, and enough senior counsel to provide training. Most importantly, they are assured of getting new hires who are untainted by time spent toiling in the risk-adverse halls of big law firms.

Sounds like good news for these lucky hires and their internal clients at HP.

The Perils of Hyperbole

First of all, has it really been three months since I've posted here? Between being crazy-busy and writing elsewhere I've neglected Corporate Tool. But fear not - this post from What About Clients? today reminded me of how hyperbole, attractive though it might be, is to be avoided like the plague in both litigation and business.

Dan Hull is absolutely right about the corrosive effect hyperbole has on one's credibility as a litigator; how a single overstatement can undermine an entire legal brief. It's simple, really: Lie about one thing, and people won't believe you about anything.

The corollary in business is this: If you're going to overstate your position, make threats or engage in brinkmanship, you'd better be prepared to back it up. Unless you're really ready to walk from the negotiating table, bring a lawsuit or take some other decisive action, such bombast is likely to seriously backfire. Empty threats are almost never successful.

Avvo Series C

I do a wide variety of things here at Avvo, from talking to angry attorneys to fetching drinks for our Friday beer gardens. Over the last week, I've been back in deal mode, wrapping our Series C financing - a $10MM round lead by DAG Ventures, joined by our existing investors Benchmark Capital and Ignition Partners.

Compared to M&A, negotiating a C round venture investment isn't exactly exciting (although it does generate a lot more paper). We kept this one hopping by closing in record time - 9 days from term sheet to close. Kudos to our great investors, DAG's counsel at Cooley and our attorneys at Perkins for moving this thing along so quickly. We're awfully excited about what the next year has in store for us.

Like Hogs to the Slaughter

One pig-meat conglomerate buying another isn't typically my stock in trade, but I was intrigued by the recent news of the DOJ levying a $900K fine against Smithfield Farms for gun-jumping in its acquisition of Premium Standard Farms. Root of the problem? During the pre-close HSR waiting period, Premium Standard had submitted several long-term contracts for hog supply to Smithfield for review and approval. Sooey!

While the amount of the fine isn't huge (representing little more than one-tenth of one percent of the $810 million Smithfield paid), what's interesting is how after-the-fact it was. The deal closed nearly 3 years ago.

Lesson one, which isn't really a lesson, because both parties should have known better: Don't ask your acquiror to sign off on ordinary course contracts, even if they ARE large and DO extend beyond the closing date. Aside from the gun jumping risk, there are also significant benefits to the seller in maintaining its operational independence while awaiting the close (optionality in the event the deal goes south; additional motivation for the buyer to close quickly). And while the buyer's interest in making sure it's not saddled with non-economic contracts is obvious, tight operating covenants are a better solution than trying to assert de facto operating control pre-close.

Lesson two: Don't expect that closing the deal is the end of your dealings with the DOJ. If you haven't run a clean process, don't be surprised if the feds come calling long after the closing dinner is a distant memory.

Thoughts on Daily Bike Commuting

I starting riding to work about 18 months ago, right after moving from Redmond to Seattle. A fair weather rider at first, I quickly grew to love the feeling of riding to work. From the exhilarating wakeup of flying downhill in the morning to the mind-cleansing burn of pedaling uphill on the way home, I was hooked. I've moved steadily onward to riding nearly every work day. I rode 180 days in 2009, and would have reached 200 if a mid-April sandboarding accident hadn't sidetracked me for 6 weeks with a broken foot.

While I certainly encourage others to "bike their drive," I'll be the first to acknowledge that my situation is about as perfect as it could be for bike commuting. At only 3.5 - 4 miles each way, riding doesn't take any more time than driving, and is way faster than the bus. Parking a car in my building costs $200 a month. My ride is entirely urban, so I'm not (often) dealing with speeding vehicles. With my morning ride almost all downhill, I don't work up a sweat on the way in. My workplace is very casual, so I can ride in my street clothes. Remove any of these factors and who knows how resolved I'd be?

In any event, the last year has been about removing obstacles to riding. The first of these was heavy rain, which for the first six months of riding kept me off my bike. Quality raingear (including these butt-ugly but effective shoe covers) solved that problem, and I now look forward to riding in the rain. I've also added a Cetma rack up front so I can carry bulky items to and from work and run more errands on my bike.

I've probably reached the maximum potential for riding - business travel, speeches and meetings still conspire to keep me off my bike a few weeks each year, and I won't ride in the snow, given the steepness of my hill and how clueless Seattle drivers are at operating in the stuff. I could get another bike, so mechanical problems - which cost me a handful of rides - aren't a factor. But that's probably more just rationalization for me to get this sweet lime-green Swobo.

Useless Corporate Lawyers?

Yes, I've known a few . . . enjoyed this brief post from What About Clients, reminding all attorneys out there to quit wringing their hands and give their clients some freaking actionable advice for a change. Also links to WAC's classic "7 Habits of Highly Useless Corporate Lawyers" post.

Getting Help with the Deal

Good post over at Venture Hacks from Scott Walker - 5 tips on getting deals closed. Here they are, with my thoughts on each:

1. Create a competitive environment. Absolutely. As I wrote about in documenting the sale of AT&T Wireless, a competitive environment drives price and terms in the seller's favor. The only thing better than telling one group that their legal ask is "no longer market" is getting a call from another that they are raising their offer. But - I would emphasize Scott's advice that this effort is one where you must have experienced help. It is a very delicate process to get an auction going and keep it alive, and not a place for any entrepreneur or business manager to learn on the job.

2. Leave your heart at home. Listen, listen, listen - and always check yourself for signs of deal fever.

3. Work your balls off. True for getting most businesses to succeed, and true in the crunch time of getting a deal done. Work 40 hours over a weekend to get a deal done while markets are closed? Spend a week in New York without eating a meal outside of a law firm conference room? You bet - everything needs to fall away when you're focused on getting the deal done.

4. Don't let your investors screw you. Doing diligence is always important - but requires focus. Pay attention to tone and priorities. Don't pay attention to things that don't make a material difference.

5. Get good legal help. God know I've spent a lot of time on this blog dealing with the failings of lawyers, and much of my deal experience has come as a principal rather than the lawyer on the deal. That said, you need to get someone who matches your energy and willingness to work your balls off, AND who knows your business and is aligned with your level of risk aversion. I've seen a lot of good lawyers blow (or nearly blow) deals by wasting time on marginal legal issues. Make sure your lawyer can tell the difference between what matters to you and what can be moved past.

Lawyers vs. "Good Enough"

Ron Friedmann has a great post on the recurring problem of lawyers applying "perfection thinking" to all legal problems.

Global Warming Science and DCF Models

The science behind the global warming hypothesis has always struck me as being a lot like the process of evaluating an M&A transaction. Both involve complex modeling in an attempt to predict future events, with the results used to support or refute an investment thesis.

One thing dealmakers know (or should know) is that the utility of a DCF model is constrained by the reliability of its inputs. For this reason, models should be given much more credence when evaluating stable, mature businesses than when modeling dynamic or new operations. For the latter, the "garbage-in, garbage-out" problem renders models little more than an exercise in involved guessing.

So - what to make of global warming science, where the task of modeling planet-wide systems is exponentially more complicated than that involved in even the most speculative of new businesses? Frankly, there's no way to call the conclusions drawn from this exercise, as many have, "settled science."

[As an aside, the concept of "settled science" in any field rings badly in the ear; the work of a scientist should always be to test, re-test and probe at various hypotheses and theories. The history of science is replete with examples of theories that "everyone" knew to be true being disproved.]

Complicating matters further is the curious and near-religious fervor of many GW scientists, complete with crushing of apostates and indications of thumbing the scale in favor of the desired outcome in the models. Modeling is not a precise science, and pretending it is so greatly impacts the credibility of those driving the science.

This doesn't mean the GW scientists are wrong. They could well be right, but does the state of the science - the value of the model - support the investment thesis? Many climate scientists and environmentalists would have us invest trillions of dollars in carbon reduction. Making that kind of investment (an investment which forecloses the opportunity to invest those dollars in other worthwhile endeavors, from disease elimination to feeding the starving to economic growth) absolutely requires rock-solid scientific support.

For now, the state of GW science probably supports tuck-in investment in incremental carbon reduction measures: greater efficiency, more trees, etc. It certainly doesn't support rushing headlong into policies that vastly transform our economy and way of life. Bottom line: If GW science were an M&A transaction, it would look, right now, like the worst case ever of deal fever.

The "Zero-Risk Era"

I could never work be general counsel of a bank - or at least, that's what I've got to conclude after reading this piece in Corporate Counsel about the global risk regulatory paradigm set up in the Basel II Accord. Under Basel II, financial institutions must do sweeping and detailed analysis of "operational risks," complete with meetings, analysis, documentation and record-keeping.

Put aside the process issues and garbage-in, garbage-out nature of this kind of program. Simply think about this: Operating a successful business is a continuous exercise in taking on "operational risk." Hopefully this risk is smart; hopefully it is vastly outweighed by opportunity on the other side. But it involves risks none the same -and working toward a "zero-risk era" is not only fraught with risks of its own, but also does a disservice to that which makes businesses great.

Pfizer and "Compliance"

So Pfizer, which made a high profile GC hiring just a little over a year ago, has been slapped again for illegal marketing practices, agreeing to a $2.3 billion federal fine. That's brutal enough, but what interests me is one of the non-economic conditions the feds imposed on Pfizer (yes, it was a "corporate integrity agreement", but that's about as much an arm's-length contract as DOJ consent decree is).

Under this agreement, Pfizer's "chief compliance officer" must report to the CEO, not the GC. Now, given Pfizer's record, perhaps that's not such a bad idea; obviously, this is an organization that needs some additional focus on compliance. However, check out this quote from Lewis Morris, chief counsel for the inspector general's office:

"The lawyers tell you whether you can do something, and compliance tells you whether you should. We think upper management should hear both arguments."

Pfizer's issues aside, this is an awfully narrow view of how in-house counsel should behave. Good business counsel should be able to give risk-adjusted advice - that is, both what you can do and whether you should do it.

Ebay - Skype - Final Chapter

Almost 4 years ago to the day, I noted that "deal fever" had gripped Ebay and led it into an ill-fated $4.1B acquisition of Skype. 2 years ago, Ebay, took a massive $1.4B writedown on the acquisition, conceding that they had overpaid.

Today, Ebay announced the divestiture of a controlling interest in Skype in a deal that values the company at $2.75B. While the deal not working out is hardly shocking, it is somewhat surprising that Ebay was able to recover as much as it did, selling 65% of Skype for $1.9B in cash (of course, you can be sure that the private equity investors conditioned the deal on a long-term commercial relationship between Skype and Ebay; that deal may well include revenue commitments).

In any event, it's always good to see a little dealmaking discipline - even when it's cleaning up the mess that deal fever can create.

AP Fires First Salvo in Losing Battle

The Associated Press is taking the novel position that even minimal references to its articles require a licensing agreement with the news organization that produced the piece. By way of example, the AP noted that the use of a headline and a link would violate a news organization's copyright. This, of course, is what one sees regularly on Google News and other sites, including blogs. For example:

Gates Faults U.S. on Data Privacy and Immigration

From a business perspective, it's strange to see anyone take a position that discourages linking. Linking is the lifeblood of the web, and it's how people find your content, both directly and via the "authoritative" benefit a site gets from most links. And from a legal perspective, there's no question whatsoever that any content owner who tries to enforce copyright to prevent standard linking will lose.

What of the headlines themselves? Sure, a headline is "expression" for copyright purposes, but it's hard to see how a news source can escape a fair use argument, given that a headline is a small portion of the overall piece of journalism and doesn't create an economic substitute for someone referring to the original piece. In fact, the opposite is true. Headlines are written to attract reader interest in the article; linked headlines drive traffic from a search engine, blog, etc. back to the original source to read the full piece.

It should also be noted that news outlets have, since time immemorial, referred to each other. News organizations on the one hand create content, and on the other hand avidly rely on content created by others. How often when reading media do you see a reference like "The New York Times reported today that . . . " or "according a CNN report . . ."?

The AP, like a lot of other traditional media outlets, is flailing about as its legacy business model slowly loses air. However, it's easy to see how this particular battle will end – an overreaching lawsuit or two that leaves egg on AP's face without vindicating its position. It may also see Google show some news outlets what a world without links to their content would look like – I suspect they would quickly find that is far worse than the way things stand today.

Why the Iranian Election is Like "Deal Fever"

Dealmakers know the symptoms of "deal fever" - the blowing past objections, rationalizing higher valuations, inflating synergies and discounting diligence items that comes once management has set their eyes on the prize. We try, not always successfully, to avoid it in our own work. Some shops even try to inoculate against deal fever, setting up incentives to kill deals. The idea is to be ever-vigilant against confirmation bias - looking for those things that confirm the direction we want to go, and avoiding/downplaying evidence that runs counter to our bias.

So, Iran. We loathe the sawed-off, anti-Semitic Ahmadinejad. We feel some glimmer of hope that the opposition represents Iranians finally embracing modernity. We imagine that anyone with a brain would vote for progress rather than the incumbent. So we side with the green-clad protesters and call the election a fraud.

Like deal fever, this represents confirmation bias writ large. Leading up to the election, there was little question that Ahmadinejad was going to win at least a plurality. The hope was that he would not win outright, and that in the run-off election Mousavi would have a better shot. However, like deal-hungry CEOs dreaming of industry domination, we've chosen to largely ignore this evidence and cling to anything that confirms our bias - the unsubstantiated rumors of ballot box burning; the images of thronging urban crowds representing the will of a people that remains largely rural, poor and conservative.

Completing a deal often means taking advantage of deal fever on the other side (some might call this selling). We should not be so naive as to believe that the opposition in Iran doesn't realize how its message plays in the West. So while we're right to ask that allegations of election fraud be investigated, and that votes be recounted, we can't accept uncritically any claims made by the opposition. Just as we sometimes have to walk from a soured deal, we sometimes have to accept that the price of democracy is a democratic outcome that we don't agree with.

"Deal Tact"

Terrific post today from John Jenkins at the Deallawyers.com blog titled "A Little 'Deal Tact' Goes a Long Way." John gets right to the heart of those factors I have consistently found key to successful dealmaking, whether you are the lawyer, financial advisor or principal: Acting respectfully to everyone in the process, not engaging in negotiating "games" or pissing matches, and always focusing on moving the deal forward.

My favorite quote:

"I’m not suggesting that deal lawyers should always act like Clark Kent -- possessing a little deal tact doesn’t mean you shouldn’t play hard ball when appropriate. I’m just saying that Conan the Barbarian shouldn’t be our role model either. I mean, if you really believe that what is best in life is “to crush your enemies, to see them driven before you, and to hear the lamentation of their women,” you’d probably be much happier as a litigator anyway."