Lawsuits

A Former Rothenberg Employee is Suing Over Breach of Contract and More

David Haase, a former employee of the beleaguered San Francisco-based firm Rothenberg Ventures Management Co. (RVM), is suing the firm and its founder, Mike Rothenberg, saying he was asked to run up more than $100,000 in business expenses on an American Express account at the direction of Rothenberg and never repaid.

In his lawsuit, filed last week in San Francisco, Haase says he joined Rothenberg Ventures in April of this year and tasked with “providing various services of a Chief Financial Office for RVM” while also doing work on behalf of the company’s affiliated businesses, including its four-year-old venture arm,Rothenberg Ventures, and its small but growing virtual reality production house,River Studios, founded in May 2015.

Haase says in his suit that in May, he opened the account with Rothenberg’s approval “for the purpose of acting as a credit line for the day-to-day expenses incurred by RVM.” These included business expenses charged by Rothenberg’s “numerous administrative assistants at his direct request.” Part of those expenses included payroll, according to our sources.

As of the suit’s filing, Haase’s account was overdue in the amount of $109,352.20 and, according to his suit, Rothenberg has “wrongfully and capriciously refused to pay” that debt, leaving Haase to deal with the charge, as well as the accruing interest on the amount. The suit says that Rothenberg “disavowed any responsibility on the part of RVM” despite having previously paid expenses charged to the card to the tune of $140,000.

Haase’s charges don’t end there. In a claim that may be of even greater interest to those following the case, Haase also says that Rothenberg co-mingled the accounts of Rothenberg Ventures and River Studios.

Whether this could prove problematic for Rothenberg isn’t yet clear; even LPs seem confused about how much of River Studios they own and how distinctly it was managed from Rothenberg Ventures. But Haase’s suit goes so far as to allege Rothenberg of treating “such accounts as personal accounts, to such an extent that such business entities were in fact his alter ego.”

More here.

Pierre Omidyar Involved in Effort to Help Gawker in its Appeal

Well, this story keeps getting more and more interesting.

According to a newly published account in the New York Post, Pierre Omidyar, the billionaire founder of eBay, is involved in an effort to help Gawker Media in its appeal of a $140 million judgement that was awarded to Hulk Hogan following Gawker’s release of a sex tape involving the former wrestler.

Specifically, First Look Media, an online news venture that includes the The Intercept and which is financially backed by Omidyar, is reaching out to other media organizations to file friend-of-the-court briefs to influence an appeals court’s decision in support of Gawker.

According to the The Post, by “filing the amicus briefs in support of Gawker, First Look could effectively elevate the trial into a First Amendment rights case,” one that would “pit” the media organizations supporting Gawker against a powerful foe of the organization: billionaire Peter Thiel.

As is widely known by now, Thiel revealed earlier this week that he’s been financially aiding Hogan’s case, to the tune of $10 million. The reason, Thiel said: he deems a Gawker bully whose work often has no connection with the public’s interest.

Thiel did not respond to requests for comment this week.

But Omidyar said this afternoon that any perceived animus between himself and Thiel is non-existent. In a tweet following the Post’s publication of its story, Omidyar writes that he has “never met Peter,” that he respects Thiel’s work as a venture capitalist, and that there is no “bad blood.”

Omidyar was featured periodically in Valleywag, though its coverage was relatively tame compared to some of its posts about other Silicon Valley executives.

More here.

A Lending Case Involving Top VCs Moves Toward a Trial

Elevate, a venture-backed company that uses big data to assess loan applications from people with low credit scores, has been called out as a predatory lender, including in Fortune last year. One reason among others is that the APR on some of its loans is a stunning 349 percent.

Yet the company’s predecessor, Think Finance, which was founded in 2001 and quietly spun out Elevate into a new entity in 2014, is no hero to those with so-called non-prime credit, either, suggests a new lawsuit that is now moving toward a trial.

According to the suit, plaintiffs are seeking financial relief against a particular payday lender that partnered with Think Finance to avoid state anti-usury laws and that has “taken advantage of people who are struggling financially by charging extortionate interest rates and engaging in illegal lending practices,” it states.

Among the specific claims against Think Finance — as well as its venture backers Sequoia Capital and Technology Crossover Ventures — are that they engaged in racketeering and the collection of unlawful debt.

The payday lender is Plain Green, which calls itself a “tribal lending entity wholly owned by the Chippewa Cree Tribe of the Rocky Boy’s Indian Reservation.”

But Matthew Byrne, the Burlington, Vermont-based attorney who has filed the complaint, writes in it that “Plain Green was created after existing payday lenders approached the Chippewa Cree Tribe of the Rocky Boy’s Reservation . . . and requested that the Tribe become involved in a payday lending scheme.”

In the U.S., he writes in the complaint, “stringent laws have been enacted to prescribe how loans can be made and to prevent lenders from preying on indigent people. By involving the Tribe in the payday lending scheme, the lenders hoped to circumvent these laws and take advantage of legal doctrines, such as tribal immunity, to avoid liability for their actions.”

All defendants had filed motions to either dismiss the case or compel arbitration. Late last week, a judge ruled instead that the case can proceed to trial.

The Chippewa Cree Tribe isn’t the only Indian reservation with which Think Finance has partnered.

More here.

A Strange New Battle Begins Over Who Owns Cruise Automation

A strange new battle over valuable startup equity took another step forward late yesterday afternoon.

Jeremy Guillory, a Bay Area mechanical engineer, has filed a cross-complaint against 2.5-year-old Cruise Automation and its longtime CEO, Kyle Vogt. At issue: Guillory says that the self-driving car company — which developed an autopilot system for existing cars and is being acquired by General Motors for reportedly north of $1 billion — is cheating him out of his rightful 50 percent ownership stake in the business, which he says he helped form. (In legalese, Guillory is accusing Vogt and Cruise of promissory estoppel, conversion, unjust enrichment and accounting.)

You knew this counter-claim was coming Wednesday, when the president of Y Combinator, Sam Altman, tried to get ahead of things publicly in a blog post.

As you may have read then, Altman, who has known Vogt for years and whose accelerator program provided Cruise its first check, acknowledged that Gillory “collaborated with Kyle for a very short period early on in the life of Cruise.”

Some time in the weeks since GM announced it was buying the company in mid March, Guillory requested a percentage of Vogt’s equity in the company, even though, according to Altman, “Kyle and Jeremy parted ways” after roughly one month of working together. “This event happened more than two years ago, and well before the company had achieved much of anything.”

The matter was private at first, with Vogt making what Altman described as an “extremely generous offer to settle this claim,” presumably to keep it from derailing Cruise’s acquisition. When Guillory didn’t accepted Vogt’s offer by a deadline last Friday, Vogt hired the law firm Orrick, Herrington & Sutcliffe to sue Guillory for so-called declaratory relief.

Guillory’s new cross-complaint seems to confirm Altman’s account from yesterday (which itself echoes Vogt’s suit).

The filing acknowledges that Guillory and Vogt first met in mid October 2013 and began working on Cruise. By October 21, 2013, they had submitted an application to Y Combinator, whose deadline that year was October 31. By November 7, 2013, after the duo had been accepted into the accelerator, Vogt told Guillory that he no longer wanted to work together.

Guillory’s attorneys note that on that print application to YC, Guillory and Vogt list themselves as co-founders and 50 percent shareholders of Cruise.

That seems to be the only documentation Guillory has to support his claim, along with this one-minute video, which Guillory and Vogt also submitted as part of their application. Whether it’s enough could determine whether or not Guillory is entitled to up to hundreds of millions of dollars.

More here.

How Goguen’s Suit Hurts Sequoia

The Friday before last, we told you that longtime Sequoia partner Michael Goguen had been slapped with a stomach-turning complaint. At its crux, it accused him of breaching an agreement he’d made to pay $40 million to a woman he’d known for years. Apparently, after paying her $10 million, Goguen concluded that he was within his rights to stop writing her checks. The woman then hired a lawyer.

Whether the case ever goes to trial is now beside the point for Goguen, who has enjoyed a lucrative career as a venture capitalist and who, fairly or unfairly, will now be publicly associated with that complaint and the person who filed it, despite his strongly worded counter-complaint.

Fairly or unfairly, it also does real damage to Sequoia Capital.

Entrepreneurs aren’t the immediate issue. It would take a lot more than this bizarre situation for most founders to be deterred from accepting a check from Sequoia, whose imprimatur can make everything easier, from assembling a team, to attracting press, to, later, luring the right investment bankers.

That Goguen is no longer a partner of Sequoia certainly minimizes the damage. (A spokesman didn’t elaborate when explaining to us last week why Sequoia decided Goguen’s departure was the “appropriate course of action.” But we suspect his original deal with his accuser was made without the firm’s knowledge, which would be a major no-no. That kind of financial agreement would be material information to a partnership.)

A much bigger problem for Sequoia will be recruiting female investing partners.

More here.

The Ellen Pao Trial: A Postmortem

On Friday, jurors concluded that Ellen Pao, a former junior partner at Kleiner Perkins Caufield & Byers, was neither discriminated nor retaliated against by the famed venture capital firm when she was passed over for promotions and ultimately fired.

It was a dramatic conclusion to the five-week trial of Pao, who is today the interim CEO of the site Reddit. It’s also the beginning of more discrimination lawsuits in Silicon Valley, say employment attorneys who’ve seen the same patterns across the securities, legal, and medical industries over the years and who believe the smaller, more insular, male-dominated venture industry has just been set on the same path by Pao’s high-profile case.

In fact, they say, both junior employees and their firms can learn a few things from what just happened.

Most importantly, it will never be easy, winning a discrimination claim in court. According to longtime employment attorney Gary Phelan of the East Coast firm Mitchell & Sheahan, cases today tend to feature much more subtle types of discrimination than they did 10 or 20 years ago, meaning there are “no smoking guns” typically but rather “a series of pieces that, put together, may or may not equal discrimination.”

In Pao’s case, the jury concluded that the pieces didn’t add up to a judgment against Kleiner, but that doesn’t mean discrimination based on gender didn’t play any role. “In many trials,” says Phelan, “part of it may be gender, age, race, disability, personality, performance – it’s never clearly one thing or another.” (If it were, it would likely settle before reaching a courtroom.)

Saving up material for a court battle can prove a double-edged sword, too, says Phelan, referring to the 700,000 pages of documents that Kleiner’s defense team accused Pao of having amassed over the years.

While junior partners might be inclined to record even more of their contributions in the wake of the Pao verdict, Phelan warns that clients with “lots of documentation” are “encouraging and scary at the same time. If you have a client who perceives every negative as discrimination and writes down everything, that’s not necessarily a good sign. It’s often someone who may be paranoid or someone who, by documenting everything, is perceived as trying to build a case that otherwise isn’t there.”

That doesn’t mean firms should sit back and relax for now.

Many have probably already taken a harder look at the way their partnership and employee agreements are written and whether, if they are sued, they can send a case to arbitration, where the proceedings are private and legally binding. (The arbitration agreements that Pao had signed related to Kleiner’s agreements with its limited partners, not an employment agreement with the firm. That’s why Pao was able to land the court case she wanted.)

Firms need also think more about their HR practices. “You have people in this industry who say they’re changing the world, and in many ways they are,” says Phelan. But “thinking that you’re dealing with much bigger things than unconscious biases and HR practices — viewing them as a nuisance — tends to work to the disadvantage of females.” (Kleiner’s lack of well-defined HR policies didn’t hurt it in the end; the next firm might not be so lucky.)

Not last, more firms will need to hire more women into their ranks, even if it takes longer than many women might like. “Kleiner won, but it hurt them, and venture firms shouldn’t conclude that they don’t have to worry about this,” says Phelan.

“Change is always incremental” but lawsuits have slowly begun to transform numerous industries over the years, including Phelan’s own. (According to the research organization Catalyst, women accounted for 22 percent of law firm partners in 2013, up from roughly 13 percent in 1995.) He says “there will be more” lawsuits that target venture firms, as well. “Once something like this case gets so much attention, people start to wake up and pursue their rights.”

Longtime employment attorney Cliff Palefsky of McGuinn, Hillsman & Palefsky in San Francisco agrees. The Pao lawsuit “has had unfortunate effect on a lot of people, including Ellen and Kleiner’s privacy and dignity,” he says. “But in terms of the debate it has created and its focus on the subtle forms of discriminations that absolutely go a long way in explaining the dearth of women in technology and venture capital, a social purpose has been served by it.”

One public lawsuit “will do more to change the environment than 100 cases that land in arbitration,” Palefsky adds.

StrictlyVC: March 27, 2016

Oh, how we love Fridays! Have a great weekend, everyone. See you Monday morning.

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Top News in the A.M.

Last week, French police reportedly raided Uber‘s offices in Paris. Yesterday, it was Dutch authorities barreling their way into the Amsterdam offices of the mobile car-booking company. More here.

BlackBerry just reported a surprise profit for the fourth quarter, but its revenue continues to crater.

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A Startup Takes on Rakuten

Industry watchers are well-aware that Rakuten, the Japanese e-commerce giant, has made a wave of investments in U.S. startups in recent years as it looks to enhance its portfolio of technologies, acquiring Buy.com, Slice and eBates and making big bets on Pinterest and Lyft, among other companies.

According to Ryan Koonce, the founder and CEO of San Francisco-based Superpoints, Rakuten is also making a name for itself as a company that willfully disregards trademarks and intellectual property. Koonce’s bootstrapped, six-year-old online loyalty rewards company filed a lawsuit yesterday against the $23 billion conglomerate, accusing it of trademark infringement, unfair competition, and unfair business practices.

At issue, says Koonce, is Rakuten’s use of “Super Points” in the marketing of its own, newer loyalty rewards program, despite a ruling by the U.S. Patent and Trademark Office that denied Rakuten’s attempts to trademark the language on the grounds that there was likely to be confusion with Superpoints’s trademark. Koonce only learned of the undertaking after being served documents that Rakuten was trying to have Superpoints’s registration canceled.

Koonce says he reached out to Rakuten numerous times afterward, including providing someone in Rakuten’s marketing department with Superpoints’s deck to show that Superpoints would be willing to work with Rakuten. “We wanted to see if there was interest in talking about how we could turn lemons into lemonade,” he says.

The New York-based representative said the deck would be sent to Japan, says Koonce, adding, “We never heard back.”

Rakuten did not respond to a request for comment yesterday.

For Koonce, his dispute with Rakuten isn’t a trivial matter. Koonce says he has spent “many long nights and time away from my wife and kids trying to build the best site I can. I also have a significant percentage of my net worth tied up in the company.”

Competing with a web giant over his trademark was something that never occurred to Koonce, who has founded a number of startups over the years, including the social media marketing company Popular Media, which was funded by Sequoia Capital and acquired in 2010.

That’s partly because it doesn’t happen very often in Silicon Valley, where people tend to play nice to preserve their relationships. But a trademark attorney at one of Silicon Valley’s largest and most-respected law firms also calls it “unusual for a big, sophisticated company to take on a little guy” because it doesn’t make good business sense. “The likelihood of confusion would be a deterrent for most honorable companies, because you don’t want to expose your shareholders to a liability.”

Adds the attorney, who asked not to be named but doesn’t know or represent Koonce: “This sounds like an exceptional situation to me . . . Even though [Koonce] may just be one guy, he has legal rights, and he can [sue] a second comer who takes [his brand].”

If there’s a silver lining for Koonce, it’s that he looks well-positioned to win his case — or at least a settlement. Because he has been using his brand since 2009 and further received trademark approval for it back in 2011, he should “have a presumption of national rights” in the U.S., says the attorney. (Though generally, trademark rights are territorial, meaning companies in different countries can have the same trademark, those national borders mean less in the Internet age, he says.)

Companies of all sizes generally have an incentive to negotiate a resolution sooner than later, too. “Even a company with trillions of dollars has budgets and has to rationalize economic decisions,” says the attorney. “No one wants to throw money and time and resources into litigation.”

In the meantime, Koonce is thinking about crowd-funding his legal fees if it becomes necessary. “The thought of fighting with a $20 billion conglomerate like Rakuten is not something I’d wish on my worst enemy. But I have no choice,” he writes in an email.

“It wears on you,” he adds. “The only way to make it is through sheer grit and tenacity.”

Fortunately, he says, “I have that in spades.”

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New Fundings

Amplience, a seven-year-old, New York-based content marketing startup, has raised $10.5 million in Series B funding led by earlier backer Octopus Investments, with participation from Northstar Ventures and Silicon Valley Bank.

Artsy, a six-year-old, New York-based online resource for art collecting and education, has raised $25 million in Series C funding led by the private equity firm Catterton, with participation from earlier backers Thrive Capital, IDG Capital Partners and the Rockefeller family. The company has raised roughly $51 million to date.

Aryaka, a 6.5-year-old, Milpitas, Ca.-based company that sells its cloud-based WAN optimization and application-acceleration platform as a service, has raised $16 million in funding led by Nexus Venture Partners, with participation from earlier backers, including InterWest Partners, Mohr Davidow Ventures, Presidio Ventures and Trinity Ventures. The company has now raised roughly $100 million altogether, shows Crunchbase. Venture Capital Dispatch has more here.

ChowNow, a three-year-old, Venice, Ca.-based food ordering startup that provides restaurants with custom online ordering tools and white label restaurant apps, has raised $10 million in new funding led by Upfront Ventures, with participation from Steadfast Venture Capital, Daher Capital, and Karlin Ventures. The company has raised $17.7 million altogether, shows Crunchbase.

Dream Payments, a year-old, Toronto, Ontario-based mobile-payments startup, has raised $6 million in funding from Blue Sky Capital, Real Ventures and Rouge River Capital.

Gelesis, an eight-year-old, Boston-based company that’s developing orally administered capsules that expand in the stomach when taken with water to induce weight loss, has raised $22 million financing from unnamed new and previous investors. The company has now raised $56.2 million altogether, shows Crunchbase.

Magic, a month-old, Mountain View, Ca.-based delivery service, is raising $12 million in Series A funding at a $40 million pre-money valuation led by Sequoia Capital, reports TechCrunch. Magic lets users text a single number to have things delivered on demand; it operates atop other delivery services, such as Postmates and Instacart.

NGM Biopharmaceuticals, an eight-year-old, South San Francisco-based drug discovery company developing biotherapeutics for the gastrointestinal endocrine system, has raised $57.5 million in Series D funding led by new and earlier backers, including The Column Group, Prospect Ventures, Tichenor Ventures and Topspin Partners.

PhishMe, a four-year-old, Leesburg, Va.-based anti-phishing startup, has raised $13 million in new funding led by earlier backer Paladin Capital Group, with participation from new investor Aldrich Capital Partners. The company has now raised just north of $15 million, it says.

Pleek, a months-old, Paris-based picture messaging app that allows users to communicate via images, has raised $600,000 in seed funding led by Partech Ventures, with participation from angel investors, including rap star Sean Combs (“Diddy”). TechCrunch has more here.

Quickplay Media, a 12-year-old, Toronto, Ontario-based online video services company, has raised $45.7 million in growth funding from Madison Dearborn Partners, Difference Capital Financial, and Orix Ventures.

Slack, the San Francisco-based real-time messaging company, is raising $160 million in new funding that values the company at $2.76 billion, reports the Wall Street Journal. The round, which will include new investors Institutional Venture Partners, Horizons Ventures, Index Ventures and DST Global, is expected to close in the next few weeks, says the report. Slack had previously raised $180 million from investors, including Accel Partners, Andreessen Horowitz, Google Ventures, Kleiner Perkins Caufield & Byers and Social+Capital Partnership.

View, an eight-year-old, Milpitas, Ca.-based maker of electronically tinting window glass, is raising as much as $100 million in new funding at “about $750 million pre-money” valuation, reports Venture Capital Dispatch.

Waygum, a two-year-old, Dublin, Ca.-based end-to-end mobile app platform for industrial connected devices, has raised $1.5 million from Navitas Capital and the corporate venture arm of Tyco International.

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New Funds

AKT IP Ventures, a months-old, Washington, D.C.-based incubator, said it has launched a fund to turn patents into businesses and it’s targeting $20 million for the effort. More here.

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Exits

DoublePositive, an 11-year-old, Tempe, Az.-based online marketing company, has been acquired by the billing outsourcing and customer-communications company Output Services Group for undisclosed terms. According to Crunchbase, DoublePositive had raised $7.3 million from investors over the years, including Hamilton Investment Partners, Southern Capitol Ventures, Outcome Capital, and The Grosvenor Funds.

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People

Salesforce CEO Marc Benioff has canceled all his company’s events in Indiana after its governor signed into law a bill that makes it legal for individuals to use religious grounds as a defense when they are sued by people who are lesbian, gay, bisexual or transgender. Recode has the story here.

Apple CEO Tim Cook says he plans to donate his estimated $785 million fortune to charity – after paying for his 10-year-old nephew’s college education. More here.

Google plans to pay its new CFO, Ruth Porat, more than $70 million in the next two years through a combination of restricted stock units and a biennial grant. The company hired Porat from Morgan Stanley earlier this week. Recode has more here.

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Jobs

The three-year-old Harvard Innovation Lab (i-lab) is looking to hire a new director of programming. The job is in Cambridge, Ma.

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Essential Reads

Facebook said yesterday that it plans to test a version of its solar-powered drone this summer, as part of its efforts to beam Internet access to billions of people without it today.

Zynga must face a lawsuit that accuses it of defrauding shareholders about its prospects before and after its December 2011 IPO. More here.

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Detours

Over the last year or so, auto racing has become Silicon Valley’s “it” hobby.

Why what your food “sounds” like affects how good it tastes.

New trailers: Entourage, Mission: Impossible, Silicon Valley, and more.

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Retail Therapy

Poor Blackberry. (At least it’s trying.)

The “Fuzzy” Logic of Venture Partnerships

The gender discrimination and retaliation case of Ellen Pao versus Kleiner Perkins Caufield & Byers has enthralled Silicon Valley in recent weeks, with everyone now focusing on what a jury that’s set to begin deliberations will decide.

But one of the many, bigger questions the trial has raised is whether it will impact how venture capitalists nurture talent and groom junior people to become partners.

If it isn’t top of mind for many partnerships, it should be.

On the stand last week, Kleiner Perkins general partner Matt Murphy described the promotional path at the storied firm as “fuzzy,” explaining to jurors that when he’d come aboard in 1999, you “just weren’t going to become a partner. You stayed two years, then you went to an operating company.”

As Murphy and then-colleague Aileen Lee were promoted to more senior roles, a “fuzzy process” of promotion began to develop that led to less collegiality and more self-interested maneuvering at the firm, Murphy testified.

That murky process also played a starring role in Pao’s lawsuit, which is why Joseph Sellers, the head of the civil rights and employment practice group at Cohen Milstein in Washington, D.C., suggests partnerships adopt a more structured promotional path than many feature today.

Explains Sellers: “There are certain types of workplaces where the path to advancement isn’t as well defined as others, and in some people’s minds, that might look to provide some protection; with a poorly defined path, it’s harder to hold people accountable for decisions.” The reality, adds Sellers, is that “what might be legitimate grounds on which to deny somebody advancement could be perceived as being influenced by something impermissible.”

Asking venture firms to be more transparent about how they choose general partners is easier said than done, of course. When it comes to the promotional paths of most firms, it’s “part fraternity, part sorority rush,” notes Cliff Palefsky, a top employment and civil rights lawyer in San Francisco. “It’s always a question of: Who do you want to hang out with?”

Murphy told jurors last week that promotions at Kleiner depend on a “critical mass of partners within the firm who are saying, ‘We want this person to be promoted . . . There have to be enough people around the table who want this person to be a partner and to work with them for a long time.”

Given that partnerships typically last at least 10 years and involve shared economics, it’s understandable to a point, too. “There’s very much an are-you-like-me orientation that comes into play in a small partnership,” says Palefsky. “Who do you trust? Who do you go to battle with? Those are the kinds of things that sunk Ellen. No one trusted her.”

The irony is that Pao – as well as Trae Vassallo, another female partner who is no longer actively investing on behalf of the firm – have been revealed as big money makers for Kleiner, even if they didn’t quite fit in longer term.

If Pao had gotten her way, Kleiner would have backed Twitter years earlier than it did and made a far richer return. She also lobbied to invest in RPX, a company that later enjoyed a successful offering, and Climate Corp., a company that was acquired seven years after its founding for roughly 10 times what investors poured into it. (Kleiner invested in RPX; it passed on Climate Corp.)

Vassallo, meanwhile, played a key role in Kleiner’s investment in Nest Labs, which sold to Google for $3 billion last year. She also led the firm’s investment in Dropcam, the camera company that sold to Nest Labs for $550 million last year. (According to two sources, Dropcam liked Vassallo so much that Kleiner’s investment in the company was contingent on securing her as a board member.)

Says Palefsky: “One thing this trial highlighted is how men and women can be held to a different standard without people realizing it, and how you can be a successful venture capitalist without being an identical twin to the person who came before you.”

Helping startups with strategic decisions and recruiting is great, but “you can be great on the board of a company that’s failing,” he says. Ultimately, he says, “What matters is whether the fund goes up or down because of how well you can analyze a business. And there’s zero reason a man would be better than a woman in doing that.”

In Kleiner Case, Question of Retaliation Moves Front and Center

Yesterday, Paul Gompers, a Harvard Business School professor, testified that Kleiner Perkins has one of the best records in venture capital when it comes to the number of female investors it employs. Gompers had taken the stand as an expert witness of behalf of Kleiner, which is currently fighting a suit brought against it by former junior partner Ellen Pao, who says she endured gender discrimination at the firm and was retaliated against when she complained about it.

While Gompers’s testimony cast Kleiner in a flattering light, it’s likely that his statements – and those of numerous others – will prove far less important to the case than those of Matt Murphy, a general partner at Kleiner who finished his testimony yesterday shortly before Gompers was sworn in. The reason: retaliation claims are often easier to prove than discrimination claims, and several things surfaced in Murphy’s testimony that may give jurors pause. Among them, Murphy, who worked closely with Pao, said that he didn’t begin taking extensive notes about Pao’s performance until days after she filed her lawsuit against the firm in May 2012. Murphy also acknowledged that Pao was given 60 days to save her job in July 2012. (She was asked to leave at the end of that period.)

In two days on the stand, Murphy denied any hint that Kleiner retaliated against Pao after she filed her very public suit. Murphy said he’d experienced “various episodes of friction” with Pao over the years and had long viewed her as “overly opinionated.” Asked by jurors what he meant, he said that Pao sometimes drew conclusions about investments too quickly and without enough information. He added that it can be “common with junior partners, because you’re associated with whether an investment gets done” rather than “whether it should have been made.”

Murphy also suggested that Pao lasted as long as she did at Kleiner only because of general partner John Doerr, who Pao had served as chief of staff in her first years at the firm. “John was very protective of Ellen and she felt protected, and that was a dynamic that persisted for some time.”

Still, jurors had plenty of pointed questions for Murphy, including whether the 60-day performance plan that Pao was put on in July 2012 was “fair.” At the time, Pao was asked to improve on several fronts, including to be sought out as a team member, be a good networker, and to demonstrate so-called thought leadership.

“It’s not that we’d expect definitively that you’d see black and white [change] in 60 days [given that] she had all these issues for six years,” said Murphy. “But we wanted to give her very concrete feedback and see how she responded. Did she suddenly start sourcing more ventures, be collaborative, work more with [general partner] Mike Abbott, go down the list of things we talked about? Was there a real change and did you see — was it visible — that she was behaving differently, trying harder, being proactive – all those kinds of things? If we’d seen those things after 30, 45, 60 days, we obviously would have extended it, but we did not see meaningful change in her behavior.”

Murphy’s testimony seemingly led Kleiner into tricky terrain. For example, though Murphy described the objectives set forth in Pao’s performance plan as “concrete,” jurors might see them as subjective. “How do you prove you had a better attitude?” says Gary Phelan, an employment attorney with the East Coast firm Mitchell & Sheahan and the chair of the Connecticut Bar Association’s labor employment section.

In situations like Pao’s, says Phelan, “The employer is both the accused and the judge of whether you’re trying hard enough.”

Murphy also argued that Pao was difficult and didn’t understand her role as a junior partner, but her reviews leading into 2012 contained both positive and negative feedback, as did other partners’ reviews. Her compensation remained stable, too. For example, in 2010, Pao earned $362,250, with an additional bonus of $150,624 (or roughly $513,000 altogether). In 2011, Pao was paid a base salary of $380,000 base salary, with a bonus of $136,800 (or roughly $517,000).

Speaking generally, notes Phelan, “If you were rated an exemplary employee, then you complain, and the next thing you know, you’re getting a poor review, that’s evidence of retaliation.”

The biggest problem for Kleiner could boil down to timing. Says Phelan: “When after somebody complains about something, and all of a sudden, there’s a paper trail where [the employer] is resurrecting things from the past, that in itself is enough to show retaliation — even if maybe the employer should have been [taking notes] before.”

Sometimes, Phelan adds, employers “kind of tolerate things for a long time.”

At Ellen Pao Trial, Last-Ditch Efforts By Both Sides

We wouldn’t want to be a juror at the trial of Ellen Pao, the interim Reddit CEO who is suing her former employer, Kleiner Perkins Caufield & Byers, for gender discrimination and retaliation.

While both sides have enjoyed small victories at the trial, many of the “gotcha” moments raised by each have been neutralized when provided broader context.

Remember those HR policies that Pao testified that she’d raised with executive members of Kleiner over the years, the ones she said she’d begged them to improve? We later learned that Pao never asked a single person to see an equal employment opportunity policy until she was preparing to sue Kleiner in 2012.

It was a startling admission. But guess what? Yesterday, we learned that there was no EEO policy at Kleiner until 2012 or that, if there was, Kleiner’s then COO Eric Keller couldn’t find it, as he testified in the afternoon. Indeed, unable to locate one, Kleiner had one created the same year. (Recode has much more on the issue here.)

How about the 700,000 pages of documents Pao was said to have amassed over the years to use in her case? It all sounded less nefarious once Pao was asked about them again yesterday, explaining that most was email coming from her work account, along with a Kleiner-issued hard drive and a box of documents that included “about 100 notebooks” for work that Pao said she’d filled up over the years.

Here’s another thing: You might have read that Pao was difficult to work with. In a 2009 email exchange between Pao and her assistant, for example, the assistant told Pao she was running late because her landlord, who spoke poor English, had been in a car accident outside her house and she was acting as his translator. “It’s great that you want to be helpful to your landlord,” Pao wrote. “It would be better for me if you could come to work on time.”

Yesterday, the incident sounded like much ado about nothing, with Pao testifying that the assistant’s tardiness was a fleeting problem and that they enjoyed a “good working relationship.” In fact, she said, when the assistant had to later choose which of her two managers to sit near — Pao, who was moving from one part of the office to another, or partner Wen Hsieh, who was not — she chose Pao.

Keller’s day in court was just as cofounding. He testified yesterday that Pao asked for what seems like a very big payout to leave the firm before filing her lawsuit against it. “She said eight figures,” he recalled. Keller also testified to Pao’s intransigence when it came to her full cooperation with the investigator that Kleiner hired to look into complaints from both Pao and partner Trae Vassallo.

We quickly learned, however, that the investigator, Stephen Hirschfeld, states on his own site that he works “on behalf of companies” — not employees. Asked if Keller read as much, he said he didn’t remember reading that detail when he researched Hirschfeld in late 2011. “I read the site. I looked at his qualifications. I didn’t memorize the website.”

Court resumes at 10 a.m. again today. We’ll see what happens. But if there’s any crystal clear takeaway at this point in the trial, it’s that workplaces can be minefields. And that isn’t exactly a revelation, even if the case has been fascinating to watch.