Over the holidays, I finally got around to reading Bad Blood, the story of the rise and fall of the blood testing startup Theranos and its founder, Elizabeth Holmes, written by the Wall Street Journal investigative reporter, John Carreyrou, who broke the story that led to the company’s downfall. I cannot recommend the book more highly. However, you’re not here for book reviews, so let’s move on.
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In a recent transaction that I worked on – obviously, I can’t give too much detail to protect client confidentiality – I noticed a weird dynamic. In a typical negotiation, when the lawyers from each side are speaking without the principals present, there is some degree of emotional detachment from the ultimate outcome, even though each attorney knows his or her role is to represent the client’s interest. Lawyers will say, for example, that it’s not worth continuing to argue about a particular bone of contention because it is a “business issue” that needs to be worked out by the principals. However, in this transaction, the other attorney, though he was unfailingly polite and even-keeled, would make fairly routine requests from our side seem thoroughly unreasonable, putting me on the defensive.
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Recognizing and Combatting Strategic Umbrage in NegotiationsRead More »
Carolyn Elefant, writing in Above the Law, takes to task those solo lawyers who, to use her phrase, “play the solo card” by using their firm’s smallness as an excuse for sub-standard service. I don’t know enough to weigh in on the specific case that triggered her piece, a solo attorney who tried to excuse a late filing by citing Microsoft Word technical issues. There certainly have been large firms that have tried to make excuses as a result of their network crashing or the like. However, I completely agree with Elefant’s overarching point that small firms should not assume that their clients and others will accept second-class service just because of the size of the firm.
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Small Firms: Don’t Use Your Smallness as an ExcuseRead More »
When I am assisting a client on a matter, and the help of a legal specialist is needed (tax, above all else, but many other areas as well), the client will often be reluctant to loop in the other attorneys and will urge me to handle it. While I’d like to think that this is a reflection of the client’s respect for my abilities, I’m sure it’s in part based on a fear that bringing on another attorney will drive up legal costs. I don’t think this is necessarily the case, and in any event, scrimping on getting the right advice can create substantive issues that cost far more in the long run.
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When I start a new client relationship, the referral source introduces me to the potential client, usually by email, and then I have an initial call or meeting with the potential client. I don’t require that a fee be paid before I agree to proceed with this background consultation. It’s only after the meeting where we make engagement arrangements if there is a need to do so. Many attorneys, however, feel strongly that this is a bad policy and insist that even the initial meeting is on the clock. Of course, attorneys can feel free to set whatever ground rules they want, as long as they’re properly communicated in advance. There may be practice areas where immediate charging makes sense, but for what I do, I think this sort of policy reveals a mindset about the attorney that I try to avoid.
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A recent Wall Street Journal article highlighted how sketchy brokers have been marketing problematic private placements to accredited investors. While the article focused on the brokers, I was struck by the identity of one of the investor victims noted in the article as having lost a lot of money: George Stephanopoulos, the ABC News anchor and former Clinton Administration official. I don’t mean to cause Mr. Stephanopoulos any further embarrassment by highlighting this here (though I’m guessing that the readership of my blog is far less than that of the Journal), but the fact that he was scammed is a useful illustration of the misguidedness of the accredited investor definition and associated rules.
The current definition of “accredited investor” under SEC rules essentially uses wealth as a proxy for sophistication, as an individual can qualify by either having an annual income of $200,000 or a net worth of $1 million not including the value of one’s primary residence. An offering made to all accredited investors does not have an information requirement, meaning the investors do not need to be provided with a similar level of disclosure that would be associated with a registered public offering.
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The Presumed Sophistication of Accredited InvestorsRead More »
A year or two ago, the phrase “share buybacks” was a phrase only known to those in and around the world of corporate finance. It refers to a company’s use of available cash to purchase its own shares in the open market. The effect of this is to reduce the total number of shares outstanding, which makes the remaining shares more valuable. Recently, however, share buybacks have become enmeshed in political debates as shorthand for actions taken by corporate America and encouraged by Wall Street that are not in the best interest of workers and society generally. For example, The New York Times recently reported on how cash freed up by the recent tax cuts are being spent on share buybacks, as opposed to more worthy uses such as hiring new employees.
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In the past few years, my private company clients have been flocking to online, cloud-based cap table services, such as Capshare and Carta (formerly eShares), as a platform to manage the company’s back-office functions for their capital structure. Aside from presenting an online cap table for reference by potential new investors and others, these sites provide a number of other services, such as being an online repository for documentation like stock option agreements and facilitating company valuations under Section 409A of the Internal Revenue Code.
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President Trump’s inimitable personal attorney, Michael Cohen, was reported by the Wall Street Journal to have used a Delaware LLC as a vehicle for payment to a porn actress of $130,000 for her silence about an alleged consensual affair with Trump. The purpose of this arrangement, apparently, was to keep Trump’s involvement quiet by using an LLC with a generic name, Essential Consultants LLC, though this goal was undermined by the fact that the publicly-filed Certificate of Formation of that entity was signed by “Michael Cohen, authorized person.” This sort of filing does not need to list any owners, and in practice is usually signed by the person with the law or accounting firm, often a paralegal, that actually prepares the filing at the client’s direction. (It’s amusing that the operation that has the financial wherewithal to pay six figures in hush money is too cheap to pay a law firm three figures to maintain the confidentiality of the principal’s involvement.)
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I read with interest an essay in the Wall Street Journal by a management professor, Morten T. Hansen, arguing that the key to success in business is selectivity, i.e., figuring out which tasks were the most important to complete, doing them well, and focusing less on the rest. Workers who take this approach are not the “hardest” workers as commonly understood, usually measured by hours spent, but they are the most effective and ultimately successful. This is an application of Occam’s Razor, which generally states that when assessing two competing theories attempting to explain a problem, the simpler one is usually the right one. Applied in this context, the correct approach to completing business tasks is to simplify the steps.
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