Wednesday, March 18, 2009

The AIG Bonuses - Pure Political Theatre

All hopes for moving beyond the banality of politics are out the window, as members of Congress stumble over themselves in populist indignation over the bonuses paid out by AIG.

Never mind that the government has known about AIG's comp structure since at least the time the insurer was bailed out last year.

If we believe that the bailout of AIG was necessary, we must also accept that those who crafted the bailout chose - wisely, I believe, given the stakes and time pressure involved - to focus on saving the patient and not to waste time on annoying-but-inconsequential details.

Look, there are lots of things about comp and benefits at Wall Street financial outfits that would make Main Street America's skin crawl. There are lots of ways any of these bailout details could have been handled with greater care and finesse. But in the pressure of the moment, we want those trying to save our economy to prioritize smartly. I just wish someone in our government would acknowledge this reality.

Monday, March 16, 2009

Good News! Businesses Cut Legal Costs

Because sanity dictates I look for silver linings anywhere I can in this economic meltdown, let me offer one up: According to a recent article in, corporate legal departments are going through an aggressive reduction in legal spend.

As I've noted before, there are benefits to a limited-resource approach when providing corporate legal guidance - whether this approach is driven by design or necessity:

- Rethinking how "goldplated" routine legal work needs to be (resulting in more responsive client service).
- Forcing inhouse teams to prioritize around where they can add the most value at the lowest cost (instead of just trying to button up every risk).
- Reducing stupid legal tricks like taking a scorched-earth approach to anything that even has a whiff of a potential trademark of copyright violation.
- Requiring inhouse attorneys to be more creative and engaged with actually driving value in their businesses.

Thursday, March 12, 2009

The Virtues of Half-Assed Legal Work

What do felony trials and bet-the-company litigation have in common? You don't want to cut any legal corners on either one - no stone can be left unturned in maximizing one's legal position. There is too much at stake to worry about the cost of all of that legal brainpower.

But not all legal work must be gold-plated. Indeed, the business world absolutely requires that attorneys be comfortable routinely doing a less-than-complete job.

Legal work is expensive. The vast majority of business legal issues don't involve fights for freedom or corporate survival - they're about opportunity and money. The legal work thrown against any issue must be justified by the stakes in play.

Lawyers have counseled businesspeople from time immemorial that investing in legal work upfront is a wise move. Absolutely true. However, and related to my earlier post about lawyers and risk aversion, the point of diminishing returns for legal work in business is often reached very quickly.

Does it make sense to negotiate a low-dollar contract the same way you negotiate a high-dollar deal? Should you aggressively ramp your defense on potential litigation that has no reasonable chance of denting your bottom line, even if everything goes wrong? What about an exhaustive review of compliance options and processes, when the need for compliance is uncertain and the consequences for non-compliance easily manageable?

I'll repeat - legal work is expensive. And there are costs to dithering and over-lawyering in lost opportunities and inability to prioritize. Marshall your legal resources and focus them on the big risks and opportunities. As for the rest of the stuff, "good enough" will almost always be just that.

Friday, March 06, 2009

Whole Foods - A Rare Post-Closing Consent Decree

I've dealt with divestiture trusts on several occasions, both as a buyer and as a seller of assets that federal regulators required to be sold under consent decrees authorizing mergers. While these sales are concluded after the larger deal has closed, the agreement and trust has always been established prior to closing.

So this is a first - Whole Foods, which bought the Wild Oats chain in 2007, has, over 18 months after closing the deal, entered into a consent decree with the FTC to sell the "Wild Oats" name and 32 locations. As I wrote at the time, I thought both the merger AND the FTC's objections to it were out to lunch. When the FTC lost a court battle to obtain a preliminary injunction blocking the merger, Whole Foods quickly closed the deal, despite the fact that the FTC appealed the PI denial. The FTC ended up winning that appeal, and now we have this settlement.

From the perspective of Whole Foods, this settlement is no big deal. There's little chance they ever planned to use the "Wild Oats" name, and the divestitures represent little more than 25% of the total locations acquired. On the other hand, this smells strongly of face-saving by the FTC. The "Wild Oats" name has little value, and of the 32 locations in the divestiture, over half (19) have already been shuttered by Whole Foods.