Post Category → Venture Capital

Fatal Errors in Early Startup Hiring

I don’t pretend to be an expert in HR or tech recruiting, at all. However, being a VC lawyer gives you a deep inside view into a lot of what goes right and what goes wrong in early-stage hiring for startups; particularly what goes wrong, because that’s usually when lawyers get called in. Lots of data points to notice patterns. While there are a whole lot more issues that I’m not covering, below are a few key recruiting errors (tactical, not legal) that I’ve regularly seen Founder CEOs make as they start trying to expand their roster.

Hiring Sociopaths

Well that escalated quickly, didn’t it. Very very very^2 few people are so talented that they can make up for having a toxic personality. What is toxic? Someone who either (i) can’t control their own emotions, or (ii) seems to somehow regularly trigger other peoples’ emotions, in a bad way.

The early days of a startup are chaotic. You need personalities that will absorb some of that chaos, and make it easier to manage, not harder. Character and values are at least as important as the person’s skillset. When I hire lawyers, I pay at least as much attention to subtle cues in a person’s behavior as I do to their analytical skills; their facial expressions, manner of speaking, how they react to others, how they describe other people and themselves. I’ve seen what it’s like to work in places where there is even just 1 super toxic personality. It ruins everything, and can sink a company.

That doesn’t mean emotions in general are bad. Emotion often means you care about something. It’s OK for people to get emotional about stuff; better than people who are disengaged and stoic all the time. But there’s a world of difference between getting emotional because you care about something v. just because you can’t control yourself, or don’t want to. Blind reference checks help a lot.

Hiring “Big Company” People

Jeff Bussgang’s “jungle, then dirt road, then highway” metaphor is valuable for understanding how you can go wrong in hiring people who aren’t the right fit for a startup environment. A Series C or later company operates extremely differently from how a seed or Series A company does. Later-stage companies have higher salaries, more narrowly defined roles, more predictability, more formality, more perks. Earlier stage means lower salaries (but more equity), more flexible and broad roles designed to ‘just get it done’ (whatever ‘it’ happens to be that day), more unpredictability, and closer-knit/more casual culture. “Highway” people usually can’t handle the jungle, or even the dirt road.

Problems arise when a company has raised a seed or Series A and suddenly wants to present themselves as one of the big dogs by hiring someone with a very impressive resume and title. That person will very often want a compensation package that strains the company’s budget, and a level of resources and order that simply isn’t appropriate for early stage. Talent can come in the form of a lot of different cultures and personalities. Make sure you’re hiring talent with realistic expectations for your company’s stage. Salary v. equity expectations are often a valuable signal here, and can select for the right or wrong people.

And a big thing to watch out for: I’ve known of VCs who subtly push founder CEOs to hire “big company” people sooner than they are really needed, to create a greater sense of urgency in needing to raise a new round, that they lead. If an investor has put some seed or Series A money in your company and wants to lead your Series A or B, they have an incentive to shrink your runway by filling your payroll with high-salary people earlier than is appropriate.  More payroll means you’re forced to close your Series A (or Series B) sooner, and at a lower valuation, than you otherwise would’ve wanted; increasing their ownership. Be mindful of this dynamic, and ensure you have a total grasp of what your talent needs are and aren’t. 

Hiring Too Fast

You see far more companies that die because they hired too fast, and eventually couldn’t keep up with payroll, than the converse. Successful entrepreneurs know how to be scrappy and resourceful; seemingly magically figuring out a way to achieve results with far fewer resources than other people could. That should apply to hiring as well, and it’s often achieved by ensuring that you aren’t hiring “big company” people (see above) with (i) unrealistic salary expectations, and (ii) such specialized skillsets that they leave needs unfilled that require hiring more people.

Hiring extremely talented, flexible generalists appropriately suited (and compensated) for early-stage is often how resourceful CEOs keep their early-stage company “default alive” instead of “default dead,” to use Paul Graham’s language.  As a general matter, at early stage someone who is really good at X, Y, and Z is more valuable, and a much safer hire, than someone who is world class at just X.

Hiring Friends or Family

If you build anything that starts getting traction, there will come a time when people start suggesting their friends and family to fill job positions. In some sense, this is not a bad thing. Recruiting from your existing roster’s network is actually a very smart and common way to find quality candidates without needing to pay recruiters. The danger, of course, lies in the psychological tendency for immature founders to hire people simply because they like them, rather than because those people actually have the talent and skills the company needs. 

Only go down this path if you are 100% comfortable saying ‘no’ over and over again, because you’ll need to. Frankly, if you’re CEO and don’t know how to say “no” when you need to (often), you’re going to face much bigger problems than hiring. 

Friends and family are easy to hire, but they’re much harder to fire because of the emotional and political dynamics surrounding the personal relationship. And hiring people because of existing relationships, instead of because of merit, is also a fast way to create an insular, mediocre mono-culture of people who are all buddies with each other, as opposed to a performance driven one. As a resource-strapped early-stage company trying to navigate chaos, you can’t afford to have a low performance culture. Hire for merit from Day 1.

As I said, there are dozens of big mistakes companies make in hiring, and I’m sure there are fantastic blog posts out there from experts on the subject. The above is just a few really core tactical blunders VC lawyers see founder teams make, because we’re usually called in to help the team clean up the mess from a legal perspective.

In the early days, hire extremely talented, flexible and mature team-players with realistic expectations about startup life, not too early, and not just because you like them or they are someone’s friend. It’ll save you an enormous amount of headaches… and legal fees.

Gatekeepers and Ecosystems

TL;DR: Relationships are important, but a business mindset that prioritizes ‘relationships’ over real value delivery enables gatekeeping and cronyism, both of which are contradictory to entrepreneurship, and can suffocate a business ecosystem.

Background Reading:

As I’m known to do on occasion, I’m going to get a bit personal with this post; because the backstory (my backstory) helps explain the message.

To say that, growing up, I did not come from money would be an understatement. When I was born, my parents (mexican immigrants) were selling tomatoes and avocados out of a pickup truck.

In a sort of american dream story, that pickup truck eventually became a moderately successful produce business, where I spent a good portion of my elementary school off-time sorting produce and invoices. Unfortunately, through a series of bad, misguided decisions, that business eventually ended in bankruptcy, and my parents in divorce. My sisters and I were raised by my single mother, who supported us by selling perfume at an indoor flea market; her small business, where I worked for most of my teenage years.

Yes, to get from there to where I am now took an enormous amount of work and hustle; hours a day commuting to public schools in better neighborhoods, days without sleep to get the grades that would get the scholarships that would pay for the colleges that I otherwise couldn’t afford, even while working, etc. But the real reason I tell that story, and this is where it connects to the crux of this post, is this: I would not be even close to where I am today if it weren’t for people willing to work with and support others purely because of their talent and merit, regardless of whom those ‘others’ knew or where they came from. 

Those people are the reason I’m here. And the underlined portion of that sentence is what makes all the difference.  Because I came from nowhere, and knew no one.

There are very few statements about business that I find more obnoxious than, “it’s all about relationships.” Not because I don’t value them. To the contrary, I think building trusting, deep relationships is one of the most important things CEOs can do. See: Burned Relationships Burn Down Companies. What truly unsettles me about that perspective is two-fold:

  A.  It reflects a pervasive mindset on how to achieve success that, when played out over time, concentrates opportunity in pockets of people who all know each other. People who go to the right schools, live in the right neighborhoods, etc. are able, despite being all kinds of mediocre, to leverage their ‘relationships’ to keep out those who are far hungrier, and far more talented, but simply don’t have the right ‘relationships.’ 

  B.  It creates gatekeepers, who can use their access to the right ‘relationships’ to control a market. And gatekeepers are the exact opposite of true business ecosystems. Gatekeepers, and the idea that you have to know specific people in order to succeed, are contradictory to entrepreneurship.

I’ve observed how, in a variety of markets and startup ecosystems, pockets of people have attempted to become gatekeepers. It never ends well.  Influencers/connectors, meaning people who serve as ‘nodes’ of an ecosystem by knowing lots of people and helping them connect with each other, are a great thing. Every town needs them. A gatekeeper, however, is an influencer/connector who has devolved into using their relationships to cut off the market from others who won’t go through them. Rather than facilitating an ecosystem, they use the “it’s all about relationships” fallacy to artificially centralize it. 

Relationships do matter. Relationship-building skills are important. But the people who most emphasize the supremacy of relationships, instead of prioritizing authentic differentiation and value proposition, are often the most mediocre. Fact. By stating that relationships are what matter most, you’re indirectly acknowledging that your success has come from whom you know instead of from what you can actually deliver. 

I remember as a kid driving through the “rich people” neighborhoods (upper middle class), imagining how amazingly talented everyone living in those homes must be. There’s no way they could be that successful if they weren’t the best of the best, right? Now, I’m nauseated by how many people I’ve encountered over the years who’ve coasted into success simply by (i) being competent, yet uninspiring, and (ii) leveraging relationships they built during their childhood and college years. Because it’s “all about relationships.”  When lawyers are coached on how to build up a client base, the first thing they almost always hear is “start building relationships.” And perhaps work on your sports trivia while you’re at it.

People who truly believe it’s “all about relationships” do not become successful entrepreneurs. Great entrepreneurs focus first and foremost on developing a legitimate, differentiated, and defensible value proposition, and then building the right relationships from there. Be so good that the right people – the ones who don’t think it’s all about relationships and quid pro quo – can’t ignore you. The relationships will follow. 

When clients approach our firm, I am happier when I hear that they have scoped the market. It serves as a great starting point for explaining how and why, instead of following the old playbook, we’ve built our reputation by completely re-tooling how law firms run: better technology, a unique culture built through unique recruiting, billing rates hundreds of dollars per hour below market, extremely high client satisfaction, strong policies against conflicts of interest, and competitive market compensation for top lawyers who work 25% fewer hours than the firms they leave.

Many don’t realize it, but that last part has been part of my core mission the whole time. Our firm is built, from the ground up, to allow lawyers to have healthy personal lives, instead of pushing them (for the enrichment of partners) into workaholism. So that they don’t end up overworked and divorced. Like my parents. I told you the backstory mattered here.

Yeah, we’ve got relationships. But they were and are earned; not given, and not bought. To this day, I shut down any suggestion that we establish economics-driven (as opposed to merit driven) referral arrangements with anyone. Not everyone is happy about it. You can’t make everyone happy. It is not all about relationships.

A true business ecosystem cannot be controlled. And true entrepreneurs cannot be held back by gatekeepers; they find a way around them, eventually. It’s what they do. Give people a chance if they are hungry, and can demonstrate real skill. Even if they come from nowhere, and know no one. 

Don’t Rush a Term Sheet

TL;DR: No matter how many blog posts and books are out there (many of which I recommend) attempting to explain the mechanics of VC term sheets in simple terms, the reality is that VC term sheets are complicated, both in terms of how their math works and in how the various control-related provisions will impact a founder team over time. Take time to understand them, and don’t rush to sign, even if investors make you feel like you have to.

Background Reading:

Similar to the ‘automation delusion’ that I’ve written about in Legal Technical Debt, which has led some very confused founders to think that most of what startup lawyers do is getting eaten (as opposed to supplemented) by software, there’s a sentiment among parts of the founder community that VC deals have become so standardized that the only kind of analysis needed before signing a term sheet should look something like:

“$X on a $Y Pre?”

“5-person Board, with 2 common, 2 Preferred, and 1 Independent?”

“Great, here’s my signature.”

Take this approach, and you are going to get a lot of ice cold water splashed on your face very quickly, and not at all in a good way. I’ve seen it many times where founders run through a VC deal, so excited about how awesome their terms were, only to realize (sometimes at closing, sometimes years later when things have finally played out) that there were all kinds of “Gotcha’s” in the terms that they failed to fully appreciate. Having solid, independent, trustworthy advisors to walk you through terms before signing is extremely important, and it needs to be people whose advice you take seriously. See: How to avoid “captive” company counsel and Your Best Advisors: Experienced Founders. 

Some simple principles to follow before signing a term sheet are:

A. Fabricated Deadlines Should be Pushed Back On – It is very common for a term sheet to end with something like “this term sheet will expire on [date that is 48 hours away].” That deadline is very rarely real. It’s just there to let you know that the VC expects you to move quickly.

It is unreasonable to sit on a VC’s term sheet for weeks without good reason. By the time they’ve offered you a term sheet, they’ve likely put in some real time diligencing your company, and the last thing they want is for you to take their term sheet and then “shop” it around to their competitor firms to create a bidding war.  Doing so is not how the relationship works, and will almost certainly burn your deal. So expecting you to move somewhat quickly in negotiating and then signing is fair, but if a VC is pressuring you with anything remotely like “this needs to be signed in 24/48 hours, or the deal’s gone,” what you have there is a clear picture of the kind of power games this VC is going to play in your long-term relationship.

Move quickly and be respectful, but make sure you’re given enough time to consult with your advisors to fully grasp what you are getting into. It should be in everyone’s interest to avoid surprises long-term.

B. Model The Entire Round – VC Lawyers are usually the best people to handle this because they see dozens of deals a year and will be the most familiar with the ins-and-outs of your existing capitalization, but having multiple people running independent models is always a good idea, to catch glitches. You want to know exactly what % of the Company your lead VC expects for their money, before agreeing to a deal.

I have seen many situations where founders get distracted by a ‘high’ valuation, but when everyone is forced to agree on hard numbers they realize that the VC’s definitions were very different from what the founder team was thinking.  This is absolutely the most crucial when you have convertible notes or SAFEs on your cap table, because how they are treated in the round will significantly influence dilution. The math is not simple. At all.

C. Understand The Exclusivity Provision – Most term sheets will have a no-shop/exclusivity provision “locking you up” for 45-60 days, the amount of time it typically takes to close a deal after signing a term sheet. This is reasonable, assuming it’s not longer than that, to protect the VC from having their terms shopped around. But it also means that if you are talking to other potential VCs, the moment one term sheet arrives, everyone else should be told (without disclosing the identity or terms of the TS you have in hand) that it’s time to put forth their terms, or end discussions. Because once signed, your job is to close the signed term sheet.

D. Focus on Long-Term Control/Influence Over Decision-Making – Thinking through the various voting thresholds, board composition, and consent requirements is extremely important. Will the board be balanced, with an ‘independent’ being the tie breaker? Then being extremely clear on who the independent is, and how they’ll be chosen, is crucial. Will one of the common directors have to be the CEO at all times? Then understanding exactly how a successor CEO will be chosen is crucial, because usually at some point it’s not a founder.

If X% of the Preferred Stock is required to approve something, then you need to know (i) what %s of the Preferred will each of your investors hold, and (ii) who will the other investors be? Usually the Company gets discretion as to what money gets added to the round apart from the lead’s money, ensuring there are multiple independent voices even within the investor base, but some VCs will throw in a provision requiring that only their own connections fund the round. That heavily influences power dynamics.

There will be many situations in the Company’s life cycle where everyone on the cap table doesn’t agree on what’s the best path for the company. Ensuring balance on all material decisions, and preventing the concentration of unilateral power, is important, and yet not simple to understand without processing terms carefully. 

E. Shorter Term Sheets are Not Better – There is debate within the VC/VC Lawyer community as to whether shorter, simpler term sheets are better than longer, more detailed ones. I fall squarely in the camp that says you should have clarity on all material terms before signing and locking yourself into exclusivity; not just the economic ones.  That means any sentences like “the Preferred Stock will have ‘customary’ protective provisions” (meaning they will have the right to block certain company actions) should be converted into an exact list of what those provisions will be. I can guarantee you your counsel’s perspective on what’s ‘customary’ is going to differ from their counsel’s.

The view among those who prefer shorter term sheets is that you should sign as soon as possible, to avoid ‘losing the deal’ (as if VC investment is that ephemeral). I don’t buy it. The moment you sign a term sheet, you are going to start racking up legal fees, and you are now bound by a no-shop/exclusivity. That means your leverage has gone down, and you are much more exposed to being pressured into unfavorable terms to simply ‘get the deal closed.’ Politely and respectfully negotiate a term sheet to make it clear what all of the core economic and control terms are. The alignment and lack of surprises on the back end is well-worth the extra time on the front end. 

In short, the core message here is know what you are signing. Make sure your VCs know that you are committed, and aren’t going to play games by shopping their terms. But also make sure you are talking to the right people to ensure that the deal you think you’re getting is in fact the one in your hands.

Separate but related note, make sure the counsel helping you negotiate the term sheet doesn’t have conflicts of interest with the VCs who delivered it. See: When VCs “Own” Your Startup’s Lawyers.  It’s not uncommon for VCs to suggest their preferred lawyers to a founder team, claiming that they’ll be more “efficient.” Whatever nickels and dimes you “save” by using their preferred lawyers will be completely negated 50x by the fact that those lawyers will really work for them long-term, and not the common stock.