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Universal, EMI Sue Napster Investor
Record labels say firm enabled infringement. Critics say the move may deter venture capitalists.
April 23, 2003|Joseph Menn | Times Staff Writer

Unable to extract their pound of flesh from bankrupt Napster Inc., two of the five major record labels are suing the venture capitalists who backed the defunct song-swapping service that turned music industry economics upside down.

Universal Music and EMI filed a federal lawsuit against Hummer Winblad Venture Partners and two of the San Francisco firm's general partners, Hank Barry and John Hummer, in Los Angeles on Monday. The suit claims that they contributed to the copyright violations by Napster's tens of millions of users.

In addition to seeking $150,000 per violation, the suit asks for punitive damages. It also is intended to dissuade investment in any of the song-swapping services that have risen in Napster's place.

"Businesses, as well as those individuals or entities who control them, premised on massive copyright infringement of works created by artists should face the legal consequences for their actions," the record labels said in a statement.

The suit may mark the first time an outside party has targeted a venture firm for wrongdoing by a company in which it invested. "I don't know if this has ever happened before," said Jeanne Metzger, vice president of the National Venture Capital Assn.

The trade group and others warned that even if the labels lose the case, the fact that they sued will deter institutional investors from taking on a high level of risk with new companies.

"It's going to create an enormous amount of reluctance to get involved in anything that could draw litigation from the content industries," said Silicon Valley intellectual property lawyer Mark Radcliffe.

Barry and Hummer didn't respond to telephone and e-mail messages seeking comment Tuesday. Barry served as Napster's chief executive for more than a year, and both men sat on Napster's board.

The suit claims that Hummer Winblad knew Napster was enabling massive infringement and that the firm controlled Napster's activities with its general partners in the chief executive and director positions and through its $13-million investment in May 2000. The investment was made five months after the record industry -- including the two labels -- sued Napster for enabling infringement. Napster filed for bankruptcy protection in June 2002.

Lawyers not involved in the case said Hummer Winblad has two reasonable defenses. First, Napster hadn't yet lost the record industry suit when the firm invested. Second, directors and investors are rarely held liable for the acts of their companies. In those cases in which individuals are held responsible, they typically own 100% of the company at fault.

The suit "is stretching contributory infringement way beyond where it's ever gone," said Wayne State University copyright law professor Jessica Litman. "I assume the purpose is to enhance the already significant chill discouraging people from investing in businesses that challenge the business models of the entrenched market leaders in the entertainment industry."

Indeed, a federal lawsuit filed by a music producer against Barry, Hummer Winblad and others was dismissed after a judge found that the accusations -- similar to those in the record labels' suit -- were too vague and that there was nothing in the copyright law to punish people who assist an entity that assists others in breaking the law.

"Courts have consistently held that liability for contributory infringement requires substantial participation in a specific act of direct infringement," U.S. District Judge Marilyn Hall Patel wrote in that case.

But the two record labels may have evidence of specific actions by the venture firm's principals. And Hummer Winblad could be hurt by the fact that Napster lost most of its court battles.

The plaintiffs have "a reasonable shot at the officer. I think the director is a little tougher, and the shareholder theory is really tough," said Radcliffe, who represents technology and entertainment firms.

Barry and Hummer anticipated that they might be sued and tried to negotiate protection from legal consequences when German media firm Bertelsmann was planning to buy Napster early last year. Those talks foundered, and Bertelsmann itself has been sued for its investment in Napster.

The venture capital trade association complained that with such actions against investors, "the ability of entrenched industries to deter investment in next-generation technologies has profoundly anti-competitive and anti-innovative implications."

But not everyone agreed that the labels' suit will change how Silicon Valley firms invest. As the suit notes, other venture firms had deep concerns about Napster's legality and didn't invest.

"Top firms don't take their cue from Hummer," said Steve Lisson, publisher of InsiderVC.com.

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Steve Lisson | Stephen Lisson | Stephen N. Lisson | Austin TX | Austin Texas
 As Start-Ups Fail, Venture Investors Back Out in Droves Financing: The stampede to put money into tech has reversed direction, with some partners selling out at a loss. April 14, 2001 | JOSEPH MENN | TIMES STAFF WRITER For the last three years, investors large and small have been clamoring at the gates of American venture capital funds, begging for a chance to put money into technology start-ups. The funds provided early financing for such companies as Amazon.com Inc., Sun Microsystems Inc. and America Online Inc. before their initial stock offerings, turning millions of dollars into billions for an elite group of university endowments, pension funds and individuals worth at least $1 million. Just as suddenly, the stampede to get in has reversed direction. And some of the dot-com chief executives who made it into the party, committing to invest millions over a decade or so, are trying to back out of their obligations. "It's hard to imagine the speed with which it has happened," said Jon Staenberg of Staenberg Venture Partners, based in Seattle. He has fielded withdrawal inquiries from two investors in his $100-million venture fund who now have cold feet. Both are executives at companies whose market value tumbled by 90% or more. An overall decline in venture financing this year was already expected, since the amount put into start-ups soared 80% to a record $68.8 billion last year, according to research firm VentureOne. Fund returns to investors went negative in the fourth quarter of 2000 for the first time in more than two years, research firm Venture Economics said this week. It won't be hard for the top venture capital firms, such as Amazon funder Kleiner Perkins Caufield & Byers, to raise cash. Those firms have turned away hundreds of would-be limited partners in the past, instead rewarding executives at companies they backed with permission to invest. Many venture capital firms refuse to discuss the new nervousness among their funders. "People are talking about it in hushed tones, with great reluctance," Staenberg said. Those who will talk say the pull-out isn't severe enough to impair the amount they invest in new technologies, one of the major engines for economic growth in the last decade. That's because individuals provide less than 20% of all venture financing. But some are concerned that investments from big institutions might decline for another reason: Many of them have financial plans that call for allocating 5% or 10% of their assets to venture funds. With those institutions' total portfolios shrinking along with the stock market, that 5% or 10% works out to a lot less cash. On Friday, the giant California Public Employees' Retirement System reported that it lost 5.3% of its assets in February alone, wiping out $9 billion in value. Barry Gonder, a senior investment officer at CalPERS, said it seems unlikely that the system's total assets would slide so far that it would have to cut back on future venture investments. "We're at about 5% [of total assets] today, and I can go as high as 8%," he said. "We'll probably become more selective." The individual attempts to withdraw are putting venture capital funds in a delicate position. If they politely allow cash-crunched limited partners to back out, others who simply dislike the firms' investment picks might try to follow suit. "People get caught in the position of do they want to put good money after bad?" said Brent Nicklas of private equity firm Lexington Partners in New York. "I've never seen it quite as widespread." Venture capital partnership agreements typically last seven to 10 years, and the penalties for early withdrawal can be harsh. In some cases, if an investor pulls out when the venture capital firm asks for a new round of promised money, the partner can lose 50% of what it already put in. The profits that the investor had earned to date also can be rolled over to satisfy at least part of the obligation. If that's not enough to meet the capital call, the venture capital firm can sue--an unpleasant step in a business built largely on personal relationships. The least painful way out for a desperate limited partner is to sell to another partner or to dump an unwanted deal on the little-known but growing secondary market, where a few firms specialize in buying limited partnership interests. As tax bills come due, an increasing number of limited partners are doing just that, unloading their holdings for less than 50 cents on the dollar. "We are seeing more sellers than we did six months ago, but the quality has gone down," said Jerold Newman, president of secondary  buyer Willow Ridge Inc. in New York. Another buyer is Nicklas' firm, which takes on soured investment deals worth as little as $1 million--or as much as $1 billion--when a bank or other major institution decides to sell off an entire portfolio. Many more calls from individuals are coming into Lexington's Santa Clara office now than six months ago, Nicklas said. "It's up, and I think it's going to continue to increase through the end of this year," he said. "A lot of last year's money came from new entrants into the market, including high-net-worth individuals at companies that the VCs had backed." A significant complication for those trying to sell off their investments is the difficulty in figuring out how much their stakes are worth. Venture funds often wait until two months after the end of a quarter before estimating how much their portfolio of public and private holdings is worth. Those trying to sell now are using valuation statements from December, before much of the stock slump. The funds also often use numbers designed to make their returns look the best, according to Stephen Lisson of InsiderVC.com. It's common for them to mark up the value of private companies as stocks in similar firms rise, then decline to mark them down again until forced to do so by an event such as a takeover or a bankruptcy. And these days, it's impossible to tell which companies are going to be around in a year. "Valuations are somewhat irrelevant if the company is going to run out of money," Nicklas said. With struggling firms more likely to return to the hand that fed them for another round of financing, it's up to the venture capital firms to decide whether their offspring live or die. "How do you predict or handicap or bet on what the venture guys are going to do? When you sit down with them, they tell you that even they don't know," Nicklas said. As Start-Ups Fail, Venture Investors Back Out in Droves - Los Angeles Times http://articles.latimes.com/print/2001/apr/14/business/fi-50936
Steve Lisson | Stephen Lisson | Stephen N. Lisson | Austin TX | Austin Texas

Tuesday, December 24, 2013


Steve Lisson | Stephen Lisson | Stephen N. Lisson | Austin TX | Austin Texas














Steve Lisson | Stephen Lisson | Stephen N. Lisson | Austin TX | Austin Texas

Steve Lisson | Stephen Lisson | Stephen N. Lisson | Austin TX | Austin Texas
 As Start-Ups Fail, Venture Investors Back Out in Droves Financing: The stampede to put money into tech has reversed direction, with some partners selling out at a loss. April 14, 2001 | JOSEPH MENN | TIMES STAFF WRITER For the last three years, investors large and small have been clamoring at the gates of American venture capital funds, begging for a chance to put money into technology start-ups. The funds provided early financing for such companies as Amazon.com Inc., Sun Microsystems Inc. and America Online Inc. before their initial stock offerings, turning millions of dollars into billions for an elite group of university endowments, pension funds and individuals worth at least $1 million. Just as suddenly, the stampede to get in has reversed direction. And some of the dot-com chief executives who made it into the party, committing to invest millions over a decade or so, are trying to back out of their obligations. "It's hard to imagine the speed with which it has happened," said Jon Staenberg of Staenberg Venture Partners, based in Seattle. He has fielded withdrawal inquiries from two investors in his $100-million venture fund who now have cold feet. Both are executives at companies whose market value tumbled by 90% or more. An overall decline in venture financing this year was already expected, since the amount put into start-ups soared 80% to a record $68.8 billion last year, according to research firm VentureOne. Fund returns to investors went negative in the fourth quarter of 2000 for the first time in more than two years, research firm Venture Economics said this week. It won't be hard for the top venture capital firms, such as Amazon funder Kleiner Perkins Caufield & Byers, to raise cash. Those firms have turned away hundreds of would-be limited partners in the past, instead rewarding executives at companies they backed with permission to invest. Many venture capital firms refuse to discuss the new nervousness among their funders. "People are talking about it in hushed tones, with great reluctance," Staenberg said. Those who will talk say the pull-out isn't severe enough to impair the amount they invest in new technologies, one of the major engines for economic growth in the last decade. That's because individuals provide less than 20% of all venture financing. But some are concerned that investments from big institutions might decline for another reason: Many of them have financial plans that call for allocating 5% or 10% of their assets to venture funds. With those institutions' total portfolios shrinking along with the stock market, that 5% or 10% works out to a lot less cash. On Friday, the giant California Public Employees' Retirement System reported that it lost 5.3% of its assets in February alone, wiping out $9 billion in value. Barry Gonder, a senior investment officer at CalPERS, said it seems unlikely that the system's total assets would slide so far that it would have to cut back on future venture investments. "We're at about 5% [of total assets] today, and I can go as high as 8%," he said. "We'll probably become more selective." The individual attempts to withdraw are putting venture capital funds in a delicate position. If they politely allow cash-crunched limited partners to back out, others who simply dislike the firms' investment picks might try to follow suit. "People get caught in the position of do they want to put good money after bad?" said Brent Nicklas of private equity firm Lexington Partners in New York. "I've never seen it quite as widespread." Venture capital partnership agreements typically last seven to 10 years, and the penalties for early withdrawal can be harsh. In some cases, if an investor pulls out when the venture capital firm asks for a new round of promised money, the partner can lose 50% of what it already put in. The profits that the investor had earned to date also can be rolled over to satisfy at least part of the obligation. If that's not enough to meet the capital call, the venture capital firm can sue--an unpleasant step in a business built largely on personal relationships. The least painful way out for a desperate limited partner is to sell to another partner or to dump an unwanted deal on the little-known but growing secondary market, where a few firms specialize in buying limited partnership interests. As tax bills come due, an increasing number of limited partners are doing just that, unloading their holdings for less than 50 cents on the dollar. "We are seeing more sellers than we did six months ago, but the quality has gone down," said Jerold Newman, president of secondary  buyer Willow Ridge Inc. in New York. Another buyer is Nicklas' firm, which takes on soured investment deals worth as little as $1 million--or as much as $1 billion--when a bank or other major institution decides to sell off an entire portfolio. Many more calls from individuals are coming into Lexington's Santa Clara office now than six months ago, Nicklas said. "It's up, and I think it's going to continue to increase through the end of this year," he said. "A lot of last year's money came from new entrants into the market, including high-net-worth individuals at companies that the VCs had backed." A significant complication for those trying to sell off their investments is the difficulty in figuring out how much their stakes are worth. Venture funds often wait until two months after the end of a quarter before estimating how much their portfolio of public and private holdings is worth. Those trying to sell now are using valuation statements from December, before much of the stock slump. The funds also often use numbers designed to make their returns look the best, according to Stephen Lisson of InsiderVC.com. It's common for them to mark up the value of private companies as stocks in similar firms rise, then decline to mark them down again until forced to do so by an event such as a takeover or a bankruptcy. And these days, it's impossible to tell which companies are going to be around in a year. "Valuations are somewhat irrelevant if the company is going to run out of money," Nicklas said. With struggling firms more likely to return to the hand that fed them for another round of financing, it's up to the venture capital firms to decide whether their offspring live or die. "How do you predict or handicap or bet on what the venture guys are going to do? When you sit down with them, they tell you that even they don't know," Nicklas said. As Start-Ups Fail, Venture Investors Back Out in Droves - Los Angeles Times http://articles.latimes.com/print/2001/apr/14/business/fi-50936
Steve Lisson | Stephen Lisson | Stephen N. Lisson | Austin TX | Austin Texas

Steve Lisson, Stephen Lisson, Stephen N. Lisson, Austin Texas

Steve Lisson, Stephen Lisson, Stephen N. Lisson, Austin Texas
PhillyDeals: Pa. pension system shakes
up advisers
Retirement
Pension System
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Pa. pension data leave questions
about returns
Collections • Retirement
By Joseph N. DiStefano INQUIRER STAFF WRITER
POSTED: October 13, 2005
As pension funds shift more assets to "alternative" investments that
don't trade on stock or bond markets, it's getting harder to tell what
they're really worth - or how big a subsidy they'll need to provide
pensions to future retirees.
For example, take the Pennsylvania Public School Employees'
Retirement System, which, at The Inquirer's request, has disclosed
some of the performance data it uses in estimating its profits from
nearly 100 private-equity and venture-capital funds.
The system has invested about one-tenth of its assets, or $5 billion,
with private-equity and venture-capital firms in the last 10 years.
By the end of last year, the funds had returned about $3 billion of the
total investment, according to the retirement system's annual reports
to pensioners and the General Assembly. More than 70 percent of the fund's private-equity and venture-capital managers - most
of which were hired during the investment boom years of 1997 to 2001 - had yet to pay back the state's investment, let alone
realize any profit.
Yet the retirement system claims total annual returns from these investments of about 6 percent a year since 1999, 8 percent a
year since 2001, and 21 percent in 2004 alone. That is roughly two to three times what the system's U.S. stock investments
returned during those periods, and far above its U.S. stock benchmark, the Dow Jones Wilshire 5000 Index. New Jersey is also
considering investing in private equity.
How does the teachers' retirement system - like other buyers and managers of alternative investments - report such positive
numbers? They count not just the cash they actually collect, but also estimated profits from investments that have not yet been
liquidated.
Because no one knows how much those investments in small and often unproven companies will earn, the system relies on
estimates from the outside managers who make the investments; the managers calculate an "internal rate of return" based on
their best guess of what the investments might be worth someday, using, for example, the values of publicly traded companies in
similar industries.
The teachers' pension system is not as big a user of alternative investments as the Pennsylvania State Employees' Retirement
System, which pays pensions to retired state workers. But the teachers' system is more open about the performance of dozens
of managers it hires to handle the funds.
The teachers' system uses a combination of investment profits and subsidies from local school districts, state government, and
deductions from teachers' paychecks to pay pensions to more than 150,000 retired school employees.
The more the retirement systems make from investments, the less they need in subsidies from state taxpayers. For the
teachers' system, local school districts and property-tax-payers help foot the bill. That makes investment performance a matter
of public concern as subsidy levels are calculated each year.
Though it relies on managers' estimates of the value of each alternative investment portfolio and uses them to calculate the
portfolio's overall performance, the teachers' system does not disclose the underlying data in its yearly reports to pensioners
and state legislators.
The system reports assets, payouts and fees, but not each manager's performance - let alone the names of the companies or
properties in which alternative managers invest.
"We don't get many requests" for manager performance data from pension-fund members, and virtually none from legislators,
said Evelyn Tatkovski, spokeswoman for the teachers' retirement system. She added that the system considers not only how
profitable alternative investments may be, but also the benefits of "diversifying our investment portfolio" beyond stocks and
bonds.
But the teachers' system has provided to The Inquirer an estimate of the value of its remaining investments for 78 of its 96
venture-capital and private-equity managers. For 18 others, the system would not provide the estimated value.
In most cases, those 18 investments date to 1999 or earlier, and managers have already sold most of their assets, Tatkovski
said. Still, the teachers' system wants to keep the remaining value confidential because "release of this information would harm
the partnerships by indirectly providing confidential information" on the "small number of properties [or] portfolio companies"
remaining in each fund, she said.
Steve Lisson, publisher of the Texas-based private-equity newsletter InsiderVC.com, questioned the teachers' system's basis for
not disclosing estimated values.
"By that point in a fund's life, the investments are mature and their valuations [are typically] well-known," Lisson said. "They are furiously trying to exit the investment, shopping it and its valuation to any greater fool with a pulse."
Lisson added, "Fund managers love to brag about returns in the good times, and then complain about confidentiality when
they're not performing well."
Tatkovski said the teachers' retirement system kept that data secret partly because it believes that is a good policy, and partly
because some investment managers ask it to do so.
Among the remaining estimated investment values that the system will not release, some are from funds that made money during
the bull-market years of the 1990s. Edison Venture Partners, of Princeton, has returned more than $52 million from investments
in 1991 and 1994 that totaled $25 million. TL Ventures, of Wayne, turned $60 million, invested in 1992 and 1997, into a total of
$83 million in cash. The teachers' system will not say what either firm's remaining investments are worth.
Other investments whose current value the teachers' system will not disclose have so far been money-losers. The teachers put
$56 million into investment firm Houlihan, Lokey, Howard & Zukin's Sunrise Investment Partnership in 1998, but had only $5
million to show for it at the end of last year. The system put $180 million into Deutsche European Partners IV in 1999, and was
still $44 million short of showing a profit as of Dec. 31.
The teachers' system also provided estimates of the value of investments held by 25 real estate funds, withholding the
information for certain funds managed by Lazard Freres Real Estate Investors and Whitehall Street Real Estate Funds.
The system says its overall real estate portfolio, which equals around 5 percent of its total assets (not counting real estate
investment trusts, which trade on the stock market), has been more profitable than any other asset class in the last five years,
returning an average of more than 12 percent, and rising to 25 percent in 2004.
Last year, the two systems paid a total of $386 million to more than 300 private firms that manage state investments. Of that
total, $260 million was paid to managers of private equity, venture capital, real estate, hedge funds (at the state employees'
system), and other alternative-investment managers, which accounted for less than one-third of the systems' combined
investments.
Contact staff writer Joseph N. DiStefano at 215-843-4947 or jdistefano@phillynews.com.
Pa. pension data leave questions about returns - Philly.com http://articles.philly.com/2005-10-13/business/25443104_1_pension-syst...
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