Breakout Sessions with Facilitated Discussions #1: Minimizing Litigation Risk During a Downturn: Conflicts of Interest and Fiduciary Duties of the Venture-Backed Company Board

Conflicts of interest at venture-backed companies are common, but can usually be managed to avoid or minimize litigation risk. The possibility of a legal challenge may increase during economic downturns, when valuations drop and investors consider more protective deal terms and aggressive structures and conversion multiples. The key to minimizing risk is to recognize and manage the conflict, not to hide from it. This session reviews the fiduciary duties of venture representatives on portfolio company boards, and explores the myriad conflicts generated in these situations. This session also describes practical techniques that can help eliminate or minimize this high-risk exposure and reduce the chance of personal liability. The discussion will also address conflicts that arose in connection with decisions by portfolio companies whether to apply for government funding made available by the Paycheck Protection Program (PPP).

Reading Materials

• Over 8,000 privately backed companies got billions in PPP loads, SBA data shows. By James Thorne. PitchBook. July 8, 2020.
• Coming Storms: Three Reasons That VC Firms May Start Overlooking “We’re Conflicted” and Make Competing Investments. Hunter Walk. October 13, 2019.
• Does Trados Matter? By Abraham Cable. October 4, 2019.
• Duties of Startup Directors and the Rule of Common Maximization. By Evan Epstein. Medium.com. November 22, 2029.
• How Private Companies Can Avoid Conflicts on the Board. By Priya Cherian Huskins, Esq. Woodruff-Sawyer. February 26, 2019.
• The Venture Capital Board Member’s Survival Guide: Handling Conflicts Effectively While Wearing Two Hats. By Steven B. Bochner & Amy L. Simmerman.