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Heaven Can Wait … and so can selling a business (maybe)

We’ve been thinking lately of a favorite scene from 1978’s Heaven Can Wait , a Warren Beatty remake of a 1943 film, Here Comes Mr. Jordan. The film’s premise is this: a quarterback, Joe Pendleton (Warren Beatty,) for the L.A. Rams dies, but it’s not his time. It’s a mistake. Mr. Jordan (James Mason), a nebulous Heaven official, swaps Joe into the body of a multi-multi-millionaire. All Joe wants to do is play football. He decides to buy the Rams. The next scene is the shot below, it’s the owner of the Rams with his attorney.
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Lawyer: What’s wrong?
Owner: He got my team. The son of a bitch got my team.
Lawyer: What kind of pressure did he use, Milt?
Owner: Well, I asked for sixty-seven million –
Lawyer: And?
Owner: And he said “okay.”
Lawyer: Ruthless bastard.

Just a great movie moment, especially for attorneys who advise businesses. It’s funny and it makes a point. You don’t always know when you’re going to get an offer for your company. You can have a lot of plans for a lot of contingencies (especially if you work with us) but you may not have a plan for when a ‘ruthless bastard’ walks through your doors and makes what may seem like an outrageous offer.

The very act of receiving the offer sets off a series of ever widening issues. There are considerations of considerations. Employees, contracts, assets, agreements, retirement plans, it goes on and on and on.

Then, there’s valuation. A great offer is stunning, exciting, fulfilling … and cause for some wonder. As in “Why so much?”

So, what about selling the Rams for $67 million in 1978? With inflation, that $67 million was the equivalent of $251.5 million today. Not bad. The Rams moved to St.Louis, were bad, got good, won a Superbowl, got bad again, got really bad, moved back to Los Angeles. Where they are simply awful.  And, according to Forbes, currently valued at $2.9 billion. That’s billion with a ‘B’.

Not being ready to handle a sudden offer didn’t work out so well for the Rams’ movie owner.

HBO’s Silicon Valley, the Real Deal, and Planning

HBO’s Silicon Valley is funny – sometimes hysterically so, smart – sometimes ingeniously so, profane, and, ultimately, really, really entertaining. It is also, sometimes spectacularly so, a primer on business planning.

For those who may not be following Silicon Valley (if you own a startup, it is a must see, start from episode 1 of season 1 … now), it’s a half-hour comedy centered around a tech startup operating out of a Silicon Valley ‘incubator’ that looks a lot like a ranch house in the suburbs. Because it is.

The company is called Pied Piper (to everyone but the founder’s derision), it has developed an algorithm that could revolutionize file compression – making video, chats, and a whole lot of other internet stuff a lot faster.

The product has great potential. The company needs money. Through the first seasons the show takes a meandering, crooked, ultimately accurate path as Pied Piper deals with venture capitalists, non-disclosure agreements, trademarks, intellectual property, employment contracts, non-compete clauses, investment agreements, proxy fights, board of director formation/dissolution/reforming, succession issues, conflicting duties among officers, offer sheets, lawsuits … the show has them all, and a lot more.

Silicon Valley gets almost everything right. It’s been written about and talked ever since it first aired in 2014. It has been universally hailed as a dead-on look at start-ups and business in the 2010s.

When we started this post about a week ago, when HBO launched the new season of Silicon Valley, we had every intention of centering this post around a few of the many great real-life business scenarios the show has covered so far. Then, of course, tie it into what we see every day.

There was a lot there, and we’re reasonably sure it would have made a good post, but then a funny thing happened. We ran across an article from The New Yorker. It was about how Silicon Valley is written and filmed. The detail and planning involved in every episode – and each season – are simply mind-boggling.

The show has two hundred advisers and consultants, most of them volunteers. They include “academics, investors, entrepreneurs, and employees at Google, Amazon, Netflix, and other tech firms.” Everything that ends up on the TV screen has been vetted a dozen times.

How in-depth do they get? “If someone is holding a document on the show, that document is written out, in full, the way it would be in real life.” Post-it notes, lines of code, whiteboards, all have real formulas on them. The producers are convinced that the more work they do to make things real, the more “the process leads” them to better ideas, better shows.

In-depth planning, active, welcome involvement of outsider advisers and consultants, HBO’s Silicon Valley is doing what every company should be doing in the real world. Every company, that is, except for Pied Piper, if they ever used someone like us, the show would way too boring for TV.

Beer Business and Planning

You probably saw the Anheuser-Busch ad during the Super Bowl. You know the one, it went somewhat viral after the game because a lot of people saw it as some kind of comment on immigration.

Regardless of one’s political leanings, it was an effective ad – two immigrants meeting in St. Louis around the time of the Civil War and launching Budweiser. Coors, of course, has a parallel story, almost at exactly the same time Anheuser and Busch met, Adolph Coors was getting his brewery up and running just a little way to the west.

The rest, as they say, is history, by the 1980’s Anheuser-Busch and Coors were the first and fourth largest breweries in the United States.  In third place was Stroh’s. Stroh’s . . . you can be forgiven for never having heard of them, never mind ever sipping one.

Yet, in the early 1980’s Stroh’s was a household – well, at least a beer-drinker-in-the-mid-west household – name. Even if you never had a Stroh’s you had heard of them. Like Coors and Budweiser, Stroh’s was founded by an immigrant in the mid-1850s. Like the Coors, Anheusers, and Buschs, Stroh’s started as a family business. Like the Coors, Anheusers, and Buschs, the Stroh’s passed the business down for four generations.

Unlike the Coors, Anheusers, and Buschs, the Stroh’s didn’t survive and thrive into the 1990s. Neither did the Stroh’s family fortune, at one time one of the largest family fortunes in the United States.

It’s not often that real life allows a direct comparison of companies over a century like a business school problem, but that’s the Coors, Anheuser-Busch, Stroh’s scenario. Family businesses that made it – while surviving Prohibition, no less – from the Civil War through to the Reagan years.

Then, in the space of ten years or so, there were two.

As you can probably guess, there is no one reason for Stroh’s demise, there are many. But they all revolve around one theme, bad planning.

Not bad decisions, bad decisions can be rectified, overcome within a good plan. It seems that Stroh’s never really had a plan for the future until the future was on top of them. Which, of course, is too late.

Stroh’s made beer in Detroit. They marketed mostly to the Mid-West. They, obviously, had a great, loyal following. They had decided generations earlier that only the men of the family would run it, no women, no outsiders. They had decided generations earlier that every family member would get dividends for life … regardless. An easy thing to support through a generation or so, but by 1980 Stroh’s dividends were paying for the lavish lifestyles of some twenty-seven family members, only a few of whom were working in the business.

It’s easy to imagine the business being run like a large, benevolent fiefdom. Stroh’s had an entrenched market, but made the mistake of becoming entrenched as a company. After one hundred and twenty years of success doing it the ‘family way’ no one running the company apparently saw change coming, certainly never thought to plan ahead.

So, when change did come, it – as change has a way of doing – came fast and Stroh’s wasn’t ready. What happened to start it off is what happens to all successful companies across the spectrum of industries, a competitor began to push. In Stroh’s case it was their fellow-immigrant founded in the mid-1800’s company, Coors.

Coors was spreading eastward. By the late ’80s their sales were poised to surpass Stroh’s. Stroh’s management wasn’t ready. They seem to have panicked. In a short period of time they tried a series of increasingly ill-advised, knee-jerk-like reactions. None worked, just piled debt into the equation. By the time Stroh’s had to fire-sale their assets, including the Stroh’s brand, they had even tried to diversify into bio-tech.

It all gets us thinking – the only companies that need planning more than start-ups are established, successful ones.



Iron Mike, Ulysses S. Grant, and a Plan

Back when it seemed that no one would ever beat him, back when he was on the cover of countless magazines, Mike Tyson was asked about an upcoming fight and his opponent’s plans to beat the unbeatable fighter. Tyson replied, “Everyone has a plan until they get punched in the mouth.”

Great line, it made headlines, he won again. Tyson was actually quoting the great Joe Louis, Louis said “Everyone has a plan until they get hit.” That quote had lain dormant for decades until Tyson resurrected it.

In either version, nowadays the quote is extensively employed. It seems as if its used mainly to illustrate (if not champion) the idea that audacity and force either stuns or disables planning. It’s a kind of bravado.

I was reminded of this quote – in a very roundabout way – by a passage in Ronald White’s new biography of Ulysses S. Grant. It’s about Grant’s first experience with the Army of the Potomac after he was installed as the Commander-in-Chief of all the Union Armies in 1864.

Grant chose to go into the field with the Army of the Potomac rather than sit in Washington and ‘manage’ the war from there. In joining the Army of the Potomac he was joining an army that was, at best, dysfunctional. An army that had been soundly beaten in almost every battle it had ever fought against Robert E. Lee and the Army of Northern Virginia except Gettysburg. And, that was close. Very close.

The Army of the Potomac, then, wasn’t Grant’s army, he was, in essence, the new Chairman of the Board, management stayed the same. He did, however, order the offensive in May, 1864 that resulted in the Battle of the Wilderness.

The Army of the Potomac attacked on May 5th and suffered a severe setback. All the while, Grant, stoic, sat and observed George Meade and his generals as they conducted the battle. He received updates but otherwise kept to himself and watched, listened.

That night, when it was crystal clear that the day had been horrific for the Union forces, several officers took it upon themselves to tell Grant about the horrible things Robert E. Lee was probably out there in the dark getting ready to do the the Northerners. Dire warnings of flank attacks and utter destruction.

Grant was famous for being implacable. That implacability snapped after about ten minutes of ‘Lee-will-do-this-to-us’ warnings.

He exploded, “I’m damned tired of hearing what Lee is going to do to us … it is about time we start talking about what we are going to do to him.” The battle resumed the next morning, the North fought to a draw, moved south the next day and began the offensive that eventually ended the war.

Then, there was the Superbowl Sunday night. You may have heard that the New England Patriots were down 28-3 in the third quarter then scored thirty-one straight points to win it in overtime. It was the greatest comeback (by far) in Super Bowl history and fifth greatest in the history of the NFL – for any game.

There’s been a lot of writing about how and why this happened. As the 3rd quarter ended the Patriots had a .04% chance of winning. Yet they did. The best explanation I’ve read on why this happened was in FiveThirtyEight. They simply stated that in the second half the ‘Patriots went back to being the Patriots and the Falcons went back to being the Falcons.’ What they meant was that the Patriots played the first half as a shadow of their usual selves while the Falcons played out of their minds good – virtually perfect.

They went on to cite the fact that despite getting blown out the Patriots approached the second half like they always approached a second half. They made some changes to counteract what the Falcons were doing, then they executed their game plan as if the score was 0-0. The rest is history.

So, here’s what hit me with all this – the important thing, the really important thing in life and business and sports and everything else – is to have a plan for what to do after you get punched in the mouth.

That’s the thing. Grant was a great planner. Bill Belichick is . . . well, Bill Belichick. With them, it’s all about contingencies for contingencies. Their planning included contingencies for getting hit. Hard.

Good planning, then, plans for getting smashed in the mouth. And for what to do while it still hurts.


George S. Patton and the NCAA Basketball Championship

On December 16, 1944 the German Army turned suddenly turned and attacked the American and British forces that had been chasing it through Luxembourg and Belgium. It was the beginning of the Battle of the Bulge. Despite the fact that the Allies had long since broken the German codes, the attack came as almost a complete surprise. Under heavy cloud cover and taking advantage of some really bad weather – and therefore negating the superior air cover of the Allies – the Germans rolled.

It’s hard to visualize this, today, when we know how it all turned out, but on December 19, 1944 the German Army was still formidable, large chunks of allied forces had been destroyed, cut off, surrounded. Since almost everyone fighting in Western Europe at the time thought the war would be over by Christmas, the attack was as stunning as it was unexpected.

So, when General Eisenhower, the Supreme Commander of all Allied Forces, held an emergency meeting of his field commanders on December 19th, it was serious. So serious, Eisenhower began the meeting by telling his generals to try and think of it as an opportunity, he wasn’t interested in panic. He was looking for ideas in the face of entire divisions reeling.

He didn’t get an idea from Patton, he got a plan. Patton would disengage from the German divisions in front of his Third Army and swing north to attack the Germans in the flank and relieve the cut-up and cut-off American Divisions. And, he would do it immediately. As soon as the meeting was over.

Ike and the other generals were incredulous, Ike went as far as to warn Patton to stop being ‘fatuous.’ Patton, though, was deadly serious. Patton was the kind of general who planned for … well, almost anything, even if the odds of something occurring were very low. Perhaps his greatest fear was to be caught unprepared.

Patton was a very serious student of military history, He knew that the German army had not taken the offensive since Frederick the Great. Yet, he had his staff plan for one nevertheless. Just in case.
Which brings us to Villanova’s NCAA National Championship game against North Carolina last April. If you watch the last few seconds you’ll note the following: UNC’s Marcus Paige drained a ridiculous double-pump game tying three pointer with 4.7 seconds left. Timeout, the Villanova players went to their bench – all except ‘Nova’s 6’11” center Daniel Ochefu. He was busy mopping a wet spot just below the half-court line. It was a curious sight, a seven-footer busy with a mop while the rest of his team huddled.

The announcers joked about it, wondering aloud while 35 million people listened why he was working a mop in a tied game with 4.7 seconds left for the National Championship.

The answer was simple: he was making sure the spot was dry because he knew it was the spot where he was going to set the pick that would spring Ryan Arcidiacono to drive over half-court and set up the shot to win it. He was making sure neither of them slipped.

How did he know to do that? Simple. Villanova had practiced the game winning play – called Nova – hundreds and hundreds of times. They had planned for this precise moment for years, 4.7 seconds left was almost the optimum time for it.

There was no discussion in the huddle, no frantic whiteboard X’s and O’s and arrows. The Wildcat’s coach, Jay Wright, said “Run Nova,” Ochefu went over to the sweat slick and did the only preparation the team needed.

Arcidiacono had several options as he dribbled, all planned back in 2002. He had made that run with 5 seconds on the clock hundreds of times in practice. Every kid on the floor with him had been through it and all its variations time after time – always at the end of practice when everyone was tired and wanted to go home – just like the end of a draining game.

In the fourteen years Jay Wright has coached Villanova, they never had the opportunity to run the play in a game. It would have been easy to self it. But they didn’t and it just so happened that the first time they needed it it was there to win the National Championship.

That’s the thing about planning – great planning plans for contingencies that may never happen. Because, they do. Sometimes.

Joe’s Garage …

Imagine that there’s a business that started in the early ’60’s, out of a garage in the Mojave Desert close by Edwards Air Force base. The founder was strangely charismatic, not something you could really out a finger on, but indisputably charismatic. He dove into his craft with a singular passion. Whip smart, cutting edge, daring, yet with a business sense that bordered on the surreal.

From the mid-’60’s through the beginning of the ’90’s he constantly adapted, changed his product(s) as times and tastes changed. Enormously influential on countless others in his field, he was also the face of his industry, even appearing before Congress when regulation threatened it.

While he had dozens – if not hundreds – of partners in various ventures over the years he always retained control of his company/products. Along the line he married, raised four children, two of whom followed him into the business. He was diagnosed with prostate cancer somewhere around 1992, with his usual laser-intensity he designed his estate so that the business would thrive for generations.

He died in 1993. He left his wife as the new CEO, the children all had management roles, the two who had followed their father into the industry directly continued on with his work. It was perfect. Until his wife died. No provisions had ever been made for a successor to the wife as, effectively, the CEO. In reality, she was probably as much referee as chief executive (although we know many CEOs who would claim the same) and without her things fell apart.

Because the ‘shares’ hadn’t been exactly equally distributed to start with, two of the kids manged to get, barely, control over the company. They do not get along with the other two – the two still working in their fathers medium. There is no consensus and the odds don’t look as if there ever will be. Parts of the company are breaking up, being sold off piecemeal; the two children on the outside have been estopped from using their father’s name in their business – the name is its selling point. There is a major sale of assets scheduled for November, litigation is threatened and seems a certainty.

The father, the business, is Frank Zappa, one of the most influential musicians of the 20th Century. And businessman. (we’ve pointed out more than once in past posts that artists certainly own businesses). He learned early that he should own his own songs, then he learned that he should own his own record labels. He executed that as well as any entrepreneur.

He structured his companies and his succession planning admirably, except for one thing. It’s the one thing that many, many owners of family owned businesses also fail to do – account for emotions. Simply, everything that can make a Thanksgiving miserable can mess up a family owned business.

It’s a contingency that has to first be acknowledged, then planned for regardless on how far-fetched it may seem. When it’s not, well, it’s pretty hard for a family owned business of any size to survive long.

So … Sea Monkeys

seamonkeycomicbookThey are an iconic image from childhood for anyone who ever has as much as leafed through a DC or Marvel comic book. Sea Monkeys. Always on the back page, right next to the ad for X-Ray Spex glasses.

How iconic? Both The Simpsons and South Park have had entire episodes that revolved around Sea-Monkeys. Sea-Monkeys – brine shrimp in a package that magically come to life when dropped in water. Then, well, using magnifying glasses built into the plastic containers, you could, theoretically, watch them do brine shrimp things for hours.

You had to be eight or nine to buy into it but generations of kids did. And do, Sea-Monkeys are a $3.5 million a year business.

The story behind the ‘invention’ of Sea-Monkeys is bizarre, flamboyant, and fascinating – a kind of early ‘50s film noir meets The Addams Family kitsch. They were developed by Harold von Braunhut, a motorcycle racer/TV producer/magician/agent for carnival acts/inventor/salesman.

Novelty items like those on the back pages of comic books were apparently a pretty big business in the early ‘60s. It was dominated by Wham-O – the guys who sold the Hula Hoop, Frisbee, Slip n’ Slide, and a lot more.

In 1960, Wham-O sold something called ‘Instant Fish’ – a package of freeze-dried African killifish that were supposed to come to life when water was added. Sales dried up like the fish when buyers found out that no power on earth could revive ‘Instant Fish’.

Von Braunhut, however, took the idea and worked with a marine biologist in Montauk to selectively breed a species0190966001452550449_filepicker of brine shrimp that could lie dormant for long periods. It was, actually, something of a scientific breakthrough. The biologist created a hybrid form of brine shrimp, von Braunhut named them Amazing Live Sea-Monkeys and they took off. The rest is history.

Von Braunhut died in 2003. His widow, Yolanda – whose background could fill a Netflix series – inherited the company, the secret formula, and the immense estate on the Maryland side of the Potomac River that the Sea-Monkeys had built.

Von Braunhut, however, had been a strictly hands-on manager and his loss was keenly felt. Yolanda needed help and wasn’t all that interested in continuing the Amazing Live Sea Monkey business. She turned to Big Time Toys out of Lexington, Kentucky, name-wise a fitting successor to Wham-O.

She gave Big Time Toys the license to package and sell Sea-Monkeys while her company supplied the packets with the desiccated shrimp. She also agreed to sell the entire company to Big Time Toys in the future. Big Time was to pay $5 million for the licensing agreement and another $5 million later, over a period of years, for her company. Yolanda was looking at a Sea-Monkey free future.

It’s probably not much of a surprise that a company with such a fictional sounding name defaulted on the agreement(s), but Big Time Toys did. Basically, they went to China and got their own source of brine shrimp and announced they now owned the Sea Monkey kingdom.


The gate of the house that Amazing Live Sea-Monkeys built.

Lawsuits have been winding their way through federal courts for some years now, all the cases revolve around some fairly knotty contract law issues, trademark infringement, as well as the catchall issue of – ‘if Sea-Monkeys aren’t really real, then how real is the company that sells them?’

The case is in court and will be for years to come, Yolanda has the house and little else. She cannot afford the heat and electricity of such a mammoth home and lives in two rooms closed off from the rest.

Meanwhile, Sea-Monkeys still sell, Big Time Toys has them in Walmart and Toys r’Us as well as the ubiquitous comics.

The point is, this is just another example – albeit a most entertaining one – of the botched sale of a company. An operating, profitable company, the death of the owner, a ‘quick’ sale by the heir, then years of litigation. All of it was avoidable with proper planning.

Brunch with Picasso

I know an attorney who did a fair amount of business and estate planning in the late ‘90s in the Greater New York City area. He told me the following story:

“I had a client who owned brownstones in Manhattan and apartment complexes in Brooklyn and Queens.

Neat guy – French aristocracy, Big Wig in Big Oil in the ‘50s and early ‘60s, he started buying New York real estate in the Mayor Lindsey era when it was considered insane to do so.

I always met him at either his office in a brownstone off Madison Avenue or at his club on Fifth. Great guy, very laidback, lots of stories about France, art, history, Manhattan in the ‘70s. Not the most forthcoming of clients, it took forever to get all his info – business and personal – but it was a hardly onerous to be doing it over lunch overlooking Central Park.

It took time, which was fine because it was very complex. Family issues, personal and business assets completely interwoven, real estate, brokerage accounts on two continents, daughters getting married, lots, lots, more.

But, finally, we got it done, produced documents for him, his wife, the business, the works. It promised to be a long signing, the client decided that we should do it over a meal in his home on Park Avenue.

UntitledI was thrilled with the idea – after all, I had seen the current appraisal for his two floor co-op in a landmark building and the Louis XVI furniture inside. We’re talking Louis XVI furniture that had a pretty good chance that Louis himself had actually at least walked by at some time before the storming of the Bastille. The real deal.

I walked in and was blown away – it was like walking into Versailles. After the initial ‘WOW’ moment I settled down and started to recognize pieces and artwork from the appraisals.

He had brunch laid out – every meeting with him always revolved around food – we piled up plates, sat down, he and his wife on a couch I was nervous eating within ten feet of, the rest of the family scattered around an ornate, sparkling, three-foot-high coffee table that Napoleon had probably snacked on.

It was all nice and relaxed and so very civilized. We talked, as always, about history and politics and whatever, somewhere along the line the framed drawing hanging over the couch caught my eye, then grabbed it. It was … interesting, the signature, well, I had to ask.

“Ah, Jean (not his real name), is that a Picasso?”

A Gallic shrug and, “I suppose so.”


Not Jean’s ‘Sort of a Picasso’

“Suppose or know, ‘cause I think I’d know.”

“Well,” he started, then launched into this: he worked in the Cote D-Azur in the late Fifties. He always woke early, went to the same café for breakfast every morning without fail. The same crowd was there every day, everyone kept pretty much to themselves. One of the regulars was an older, somewhat familiar, balding man.

One morning, the man approached Jean, told him he had forgotten his wallet and could he ‘impose’ on Jean and pay him back the next day. Jean, as I can attest, was nothing if not generous with food, and he invited him to sit with him.

The talk was amazing, breakfast melded into lunch, then dinner, wine flowed. Late in the afternoon, Jean’s new friend said, “I had such a great time, I must pay for this.” Before Jean could object the man pulled pens out of his pockets, had the table cleared and a new, linen tablecloth brought over and proceeded to – with Jean now in awe – sketch out a drawing. Then he signed it.

Pablo Picasso.

Also not Jean's 'Sort of a Picasso'

Also not Jean’s ‘Sort of a Picasso’

“Great story” everyone but me gasped.

I caught Jean’s eye, he must have seen the utter resignation in them for he said, “Does this effect what you’ve been doing? I am sorry I forgot all about my Picasso.”

“That’s okay, Jean,” I answered, “I forget about mine all the time.”

He had the grace to laugh, “But does it? Alter what you’ve done?”

“Depends on the valuation.”

“Oh, I’ve never had it appraised.”

I left my tongue firmly in cheek but started to put the pile of documents back in my briefcase, “Well, let’s get it to Sotheby’s and see what happens, maybe we’ll get lucky and you just ran into a Picasso imitator and all you got out of the day was a nice drawing.”

He laughed, I called a friend at Sotheby’s, went back to my office and waited. Two weeks later I ended up shredding the documents. The drawing was worth more than one of his Manhattan brownstones.

I love this story and I’m posting it here, now, because the moral is simple – when doing business planning, particularly rolling it out, it’s vital to know what the company owns, what it’s worth, and it’s not always that easy to figure out.