Posted May 11, 2012 10:08 PM CDT
By Paul Lippe
I enjoyed the recent ABA Journal story about the report that Mark Zuckerberg, the founder and CEO of Facebook, negotiated the acquisition of Instagram for $1 billion with Instagram CEO Kevin Systrom without using lawyers (at least initially).
The story—and especially the reader comments—illustrated the gulf between the Silicon Valley and conventional lawyer mindsets—both in terms of how they approach the role of lawyers and, perhaps more importantly, how they deal with anomalies.
For some commentators (call them the “anti-Zs”), Zuckerberg’s action in going directly to Systrom shows he is a fool, and anyone who invests in Facebook must likewise be a fool.
But is that right? Is Zuckerberg a fool? Are the folks who have (and will) invest in Facebook, fools?
First, let’s stipulate that at some point in the transaction, lawyers will get involved. And I would not be surprised if Zuckerberg had prepped for his meeting with Systrom by meeting extensively with his lawyers, but just wanted to let the world know that he’d done it himself. Second, we can stipulate that good lawyers can add lots of value to deals: They have expertise and experience, and there are many specialized issues (e.g. tax) that no CEO would understand.
But it’s also the case that lawyers will tend to bring in more complexity, conflict and delay, often in the name of reducing “risk,” and that these lawyerly habits may in fact increase risk. At some point in the deal, there’s no doubt that Facebook’s lawyers will be tempted to add an environmental representation to the reps and warranties section, even though there is exactly .0000001 percent chance that Instagram has any environmental liabilities, and when Systrom sees that, he’ll start to wonder what other things in the deal don’t make sense.
Zuckerberg may well have thought that there would be other bidders for Instagram and that getting Systrom in the room would keep the price down, or that Systrom’s sticking around post-merger was the most important factor to success, and so building trust through shared risk-taking was the best way to reduce risks.
For the anti-Zs’ general thesis to be correct, they should be able to point to evidence that lawyerly involvement was positively correlated with M&A success. If we look at some the recent disastrous deals like Bank of America’s acquisition of Countrywide, or Time-Warner’s acquisition of AOL, you’d be hard-pressed to find universal support for that proposition.
“But you don’t understand,” the anti-Zs will rejoin. “The lawyers weren’t responsible for the things that lead to the 100 percent write-offs and multiple lawsuits in those deals.” But if the lawyers weren’t responsible for the things that lead to risk, what is their role in risk reduction?
I’m certainly not suggesting that lawyers are all bad, just as I hope the anti-Zs aren’t suggesting that they’re all good. The reality is that lawyers bring true value, some negative value, often some “cover [someone’s] fanny value,” and some cost to every deal. To assess how good a job they did, you have to look specifically at what they did and contrast with comparable performance by other lawyers. Ideally one would assess that over a longer time frame, but that isn’t easy.
To paint with peanut butter on the brush is to miss a lot of the fine lines, and makes it impossible take seriously the view of someone like Zuckerberg, who may in fact recognize that there are areas in which lawyers could improve. Given that Zuckerberg was named Time magazine’s man of the year and has created a very significant company from scratch while exercising a high degree of control, it wouldn’t be crazy to have one’s first reaction be “hmmm, what does Zuckerberg know that I should know?” as opposed to “Zuckerberg apparently doesn’t agree with me, therefore he is wrong …”
Maybe Zuckerberg’s challenge is actually an opportunity to figure out how we can do better in a world where disruption is normal.
Paul Lippe is the CEO of the Legal OnRamp, a Silicon Valley-based initiative founded in cooperation with Cisco Systems to improve legal quality and efficiency through collaboration, automation and process re-engineering.