The Lawyers Look At The Aqui-hires

In April I wrote about the tons of (private, never public) grumbling by investors over “acqui-hires.”

In many cases investors feel cheated when entrepreneurs take millions off the table in a small acquisition and investors get little or nothing back.

To be clear, we take the opposite position at CrunchFund.

But the lawyers and the VCs are definitely trying to figure out ways to protect themselves in these deals.

And a newly published academic paper by UNC law professors John Coyle and Gregg Polsky digs deeply into the topic. You can download and read it here.

Dan Primack also has a good summary.

The paper references my earlier post:

Michael Arrington recently suggested that, in response to this situation, counsel for investors will develop legal innovations to address this deficiency. Specifically, he suggested thatinvestors’ counsel develop new contractual provisions that deal specifically with the prospect of a future acqui-hire. In this Section, we propose several possible innovations along these lines.

It also includes information from a lot of anonymous interviews with entrepreneurs, buyers, investors and counsel.

What’s most interesting about the paper for me – these guys, outsiders, really get the whole psychology of Silicon Valley and the multi-stage game that’s going on.

Everyone’s concerned with long term reputation and that leads to non-legal pressure to act in certain ways by all parties involved.

The only thing I think the authors missed is that there’s also reputational pressure on buyers as well. These buyers rely heavily on investors to get deals done and if they push too hard, investors tend to get pretty angry over the long run.

Anyway, this is an area of deal culture that is highly volatile right now, and the psychology at work is fascinating. This last long quote really gets to the fundamental forces that drive Silicon Valley:

Whether an entrepreneur will be able to raise funds for a new venture will depend, at least in part, on his relationship with the investors who had funded his last venture. “When you start a company,” we were told, “the first place you look is to the people who funded you the last time.” Even if these previous investors decline to invest, their opinions will still affect the ability of the venture to obtain funding. In Silicon Valley, previous investors often vouch for an entrepreneur and also provide leads and recommendations for funding when they are unwilling or unable to invest themselves.

Entrepreneurs who aspire someday to start another venture will therefore desire to remain on good terms with their previous investors. In game theoretic terms, the relationship between the entrepreneur and the investing community in Silicon Valley is a multi-stage game where the optimal strategy may not be to maximize one’s winnings in the first round of the game. A desire on the part of the entrepreneur to maintain his reputation, we were told repeatedly, can and does serve to check his incentive to extract everything he can from the current venture. This may explain theprevalence of the acqui-hire structure, in which part of a portion of the compensation package is effectively deflected to the investors, as contrasted with the defection model, in which the newly- hired engineer keeps everything.

The power of reputation as a check on entrepreneurial opportunism appears to vary with the prominence of the investor in the original venture. If the investor is Sequoia Capital—perhaps the best-known venture capital firm in Silicon Valley—then we were told that the entrepreneur will go to great lengths to end the current venture on good terms. In the acqui-hiring context, this would mean making sure that Sequoia received a payout from the buyer large enough for Sequoia to feel as though it had been treated fairly. If, on the other hand, the investor is a small-time angel investor, then the entrepreneur will be less concerned about leaving on good terms. Such an angel investor might be unable to finance any future ventures and, moreover, would be a small enough player that any negative assessment would not generate traction in the Silicon Valley investor community.123 Between these two extremes—Sequoia and the novice angel—there is obviously a wide range. In all cases, however, it seems that entrepreneurs try to figure out, as one interviewee put it, “the lowest amount that can be paid to investors so that they don’t squawk.”

It’s all game theory.

4 thoughts on “The Lawyers Look At The Aqui-hires

  1. When an acquisition is in play, animal instincts sadly trump ethics and doing the right thing.

  2. Matt Meo says:

    Hi, Michael. My name is Matt, and I am working on a start up company and I am looking for angel investor. If you like DanceJam, you will really like our idea too. If it’s not too much trouble, could you email me at mattsmeo@yahoo.com? This is the only place on the web I can find to contact you that seems reasonable.

  3. I really like this that an academic paper is referencing your blog posts. Academia is desperate to keep up with the world…

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