I don't do this very often . . . but I'd like an "amen" from someone who was in the VC class during Fall 2010. The day after Groupon refused Google's acquision offer, I announced to the VC class that "we'll look back about this some day and just laugh." I've just never understood what is protectable about Groupon. They might yet have the last laugh on me. And, yes, the founders have sold more than enough on the secondary markets to endow professor's chair positions at multiple schools. But Groupon feels to me more like a hula hoop fad than a Model T innovation.

Brad

It was a good jiu-jitzu when someone in the ELC mentioned the prospect that the right type of rude behavior would potentially enhance Kid Dynamite's value.

On Nasty, there is little doubt that, as Robert Johnson is to the Blues, Ilie Nastase was to boorish tennis behavior. People love to watch the juxtaposition of a sport for "gentlemen" and "ladies" with relentless attacks on norms of civility.

Brad

From Cliff Richey:

The most notorious Bad Boy of us all was without question Ilie Nastase. His nickname was “Nasty” because of the dirty tricks he pulled. I remember one match where he wore a T-shirt under his regular collared shirt and when he got mad at the crowd, he lifted up the first shirt to reveal his T-shirt with a picture of the infamous middle finger. He was literally saying “F you” to the crowd! I really think Nastase enjoyed the carnival atmosphere more than anything else. I think that was his way of escaping the pressure. He would take a situation and make it into something he felt more comfortable with. That way he could pretend he was in control. He won the French Open and the U.S. Open that way. He was known as the Clown Prince of Tennis.

Nastase is still a good friend of mine, but there was a time when we didn’t speak to each other for a full year. During one match we played, the base linesman called a foot fault on his serve. Nasty kicked his shoe off at the linesman. I was waiting for him. He pretended that he couldn’t untie the knot to get his shoe back on. I finally said to the umpire, a guy named Hague Twofink, “I’m not putting up with this. The rule says ‘continuous play.’ I’m claiming the match.” I took all my stuff and went back to the locker room. I already started talking to reporters about claiming the match. My host that week, Bernie Koteen, came to get me and said, “You’d better go out there. They’re about to default you.” So I went back out on the court and told Twofink, “I’ll play, but his foot fault stands. He only has one serve left. If he doesn’t put the ball in play within 10 seconds, I’m leaving. I don’t care who you give the match to.” Twofink agreed. He announced that Nastase would have 10 seconds to serve. Nastase refused. The crowd started counting down: “10, 9, 8,” etc. Nasty never put the serve in play and was defaulted.

This provides a useful framing (hold em, fold em, run) and a productive set of questions concerning circumstances that militate in favor of one tool (e.g., run) over another (e.g., fold em).

One easy maxim which informed my warning on the AAA provision: don't unnecessarily obligate your client (or both parties, for that matter) to something they'll be unlikely to do or, alternatively, something that they probably won't want to do.

Beyond that, it gets tougher. It is a a valuable project to keep notes upon since, to my knowledge, there is not a definitive set of answers to this set of questions.

One determinant of contract provisions relates to what CAN be known about the future vs. what remains unpredictable. In the literature, there is scholarship on this, including papers on the value of fuzzy rules (e.g., fold 'em). I'm fairly sure that Harry Surden has written some on this area. Dangerous to relay an article that I have not read, but the abstract to this article reflects some of what I have in mind: http://papers.ssrn.com/sol3/papers.cfm?abstract_i...

Brad

Delighted to hear of the exercise's utility. I also very much appreciated the constructive approach of each ELC student attorney during last Monday's de-briefing with Dorothy. No one got overly defensive. Everyone "got" the spirit of the exercise. Good start to the semester.

As someone closely involved in CU entrepreneurship, I'm delighted to see Whitney's fine coverage of student entrepreneurs.

Happily, it is worth underscoring that these companies are not an accident. Of the companies cited in the article, over ½ exist because of – or were significantly spurred by – business execution classes, the help of centers across the CU-Boulder campus (listed here http://www.boulderstartups.org/about/education/), the New Venture Challenge (see cunvc.org), the Ent Law Clinic (http://www.colorado.edu/law/clinics/entre/), and campus / community interaction such as the New Tech Meetup.

In short, these businesses are the result of a burgeoning culture that is spurring innovation on campus. Increasingly, CU is one of the nation's best launch pads for students who want to learn about entrepreneurship, start a business, and connect to a world-class startup community.

Brad

Brad Bernthal
Clinical Professor
Colorado Law School
Entrepreneurial Law Clinic
Samuelson-Glushko Technology Law & Policy Clinic
Director of Silicon Flatirons Center's Entrepreneurship Initiative
303.492.0610
Brad.Bernthal@Colorado.edu

Best,
Brad

I have enormous respect for the speaker, Professor Scherer, who made the R&D argument that indicated "federal funding is not necessary to promote innovation."

That said, you should know that his position on this is debatable, and IMHO . . . plain wrong. Much of this depends on what is counted as serious R&D within companies. My intuition is that near term R&D far outruns longer term research. Companies can do near term, applied research; companies' time horizons make it hard to invest in basic research. But the fundamental insights are often difficult to rely upon the private sector for.

Another issue that caught my attention was from panel #3: to what extent can a country that invests in basic / fundamental research capture the benefits of the research? In an interconnected world, there is strong incentive to free ride on the basic research of others. The discussion of sharing basic research costs through treaties / trade agreements caught my attention. Tough to operationalize but an interesting idea.

Brad

Kudos to JD: first time blogger hits what might be my favorite all-time ELC blog subject line.

On niceties . . . everyone develops a negotiation style. One item to bear in mind: I've seen plenty of clients irate about attorneys who "blow up the deal" (appropriate for the kid dynamite theme). As JD notes, building a relationship is one of the attorney's objectives in a situation like this, especially where the clients hope to do work together moving forward. To be clear: this should not be mistaken for an excuse to capitulate at each turn. But it does mean that -- if a negotiation starts to go south -- that you're well served to table the item + go back to the client before jeopardizing the relationship yourself.

Brad

Further to the post above, the Hadzima memo is available here: http://web.mit.edu/e-club/hadzima/founders-memo.h...

I think it is an excellent set of common sense questions to think through when you're organizing an entity with multiple founders and/or early employees. Worth keeping in your files.

Brad

Good on-point reference, Dave. There is an excellent, if dated, article by Joe Hadzima that I've assigned in past classes about founder relationships + considerations to think through. I'll circulate to the class as a FYI via email. Brad

Another insight behind the preemptive strike: people are sometimes lazy. If something is done reasonably, and an individual on the other side is busy, then doing someone else's work is often attractive to them. No sense in overplaying this idea -- there are certainly ample instances in which it won't work. But it is powerful to take the first swing and, at times, this is enough to alter the frame to your client's advantage.