Happy Labor Day

It’s Labor Day weekend and thoughts turn to the end of the summer and cookouts. And beer. Labor Day weekend accounts for a significant portion of the $100 billion U.S. annual beer sales.

There are thousands of beer choices in 2022. Craft beer breweries are everywhere. But when all is said and done, by this coming Tuesday, the best selling beers will be Anheuser-Busch and Coors brands. Two companies that began as family-owned businesses in the mid-1850s and eventually morphed into brewing conglomerates.

Anheuser-Busch and MolsonCoors are the two largest brewers in the United States. Hardly surprising, it’s been that way for generations of beer drinkers.

It wasn’t quite that way in 1980. Anheuser-Busch was number one but Coors – still not quite a national brand – was fourth. Between them was another family owned brewery started before the Civil War – Stroh’s. You may have never heard of Stroh’s but for 130 years it was a household – well, at least a beer-drinker-in-the-Midwest household – name.

Like Coors and Budweiser, Stroh’s was founded by an immigrant in the mid-1850s. Like them, Stroh’s started as a family business. Like them, the Stroh’s passed the business down for four generations.

The Gray Area in Same Sex Marriage

Two cases, eighteen hundred miles apart, same time frame, same combination of family and estate law, eerily similar facts, and eerily similar family dynamics.

They are from Texas and New York. Our own Elaine Berkeley handled the Texas case, a scrum of law firms and lawyers are overseeing the New York case. The difference in tenses may tell you how things have gone.

These are two cases that involve ‘modern families.’ Same sex relationships that began long before the Supreme Court’s 2015 Obergefell decision legalizing same-sex marriage.

New York

In the late 1960s, Bill and Tom, both artists, bought a three-family brownstone on Horatio Street in the West Village. At the time, no one was buying real estate in Manhattan. They lived together in a one-bedroom apartment on the ground floor that opened out to a courtyard garden and rented out the other three apartments.

Chadwick Boseman's Estate Settled

It was big news last week when it was announced that Chadwick Boseman's estate settled. You may remember that the great actor Chadwick Boseman died two years ago after a long battle with cancer.

He survived four years with colon cancer that was Stage III when discovered. He never got around to creating a will or an estate plan. If we had to guess why, we'd venture that fighting cancer while working took up all his energies and, perhaps at some point, he equated making a will/estate plan to giving up. Understandable, but the problem is, wills and estate plans are not about you, they're about the people you leave behind.

The good - extensively covered - news last week was that Boseman's estate settled. His widow, appointed administrator, chose to evenly divide the estate with his parents. They'll be no probate battle or litigation. A feel-good story . . . . . . that was a panther’s whisker away from disastrous.

When Chadwick died, he was supporting his close-knit family and his new wife. He continued working. He had appeared in two of the highest grossing movies of all time – the potential residuals are head-spinning.

He not only died intestate, he married his long-term partner, Taylor Simone Ledward, just a few months before his death. California law states that when “a person dies without a will, the spouse inherits all community property and is to split the individual’s separate property with the deceased surviving parents.” (California, like Texas, is a community property state).

Happy Fourth of July

We’re headed into the long July 4th weekend . . . what better time to talk about a startup.

It’s a big startup, based on a radical idea, revolutionary in fact. It started out with small, modest goals but quickly expanded – far too quickly, it’s on shaky ground, underfunded, and burning up the capital of its main VC. The founders never had the time to do more than hastily incorporate. Operating agreements, much less employment agreements and guidelines, do not competes and non-disclosures were never enacted.

The competition is old, established, monolithic, and slow moving – but rich beyond measure.

The board of directors are split – almost evenly – on the startup’s long-term goals. Some of them want to be bought out by the competition. Unsurprisingly, they spend most of the time arguing among themselves. Only two directors took the time to visit the physical plant.

The CEO is tall, aristocratic, smart, taciturn – the perfect qualities, he is indispensable. The board, however, continuously tie his hands, interfere in day-to-day operations, and withhold funds needed for training. He’s put everything on the line for the company to succeed on its own, the alternative would be personally ruinous.

Shareholder Oppression Special Edition

“Souls are boring. Boo, souls.”

We won't have HBO's Succession to write about for a while, but they left us - no spoilers - with a few last lessons/observations/morals. As the final episode of Season 3 wound down we couldn't help but think - we are a law firm after all - of how the shareholders of Waystar would have felt this season.

It was a season of wild swings in the company's value - it happens, of course, with all businesses at one point or another and can be tied to many outside influences.

That, though, was not the case with Waystar this season. All the fluctuations were based on rumor, innuendo, and the bad acts of several of the company's officers/shareholders/directors. In short, all the damage was self-afflicted by the very people who were supposed to be responsible for Waystar' financial well-being.

The fictional Waystar Royco company is publicly traded. It's also controlled by the Roy family with the patriarch, Logan Roy, the major shareholder and CEO. He wields that power like he rules his family - impetuously, head-strong, unyielding, profane, and brash.

Three of his four children - all shareholders, all (at one point or another) officers - act like dad, just much less effectively. One thing they all have in common is that the Roy family always - always - act in their own interests before Wayco's.

Real Cases

It Had Everything

Our own Kirby Hopkins was recently named one of Houston's top Commercial Litigation Attorneys by Houstonia Magazine as voted by members of the Houston Bar - which makes the honor especially pleasing.

'Commercial Litigation’ is not always easy to quickly, concisely define. It’s at once specific (Commercial) and general (Litigation). Neither begins to get across what Kirby and we do as a firm.

Luckily, one of the cases that contributed to Kirby’s honor does all the explaining for us.

Kirby was local counsel in a business dispute that resulted in one of the biggest jury verdicts in Texas in 2021, $32 million.

It was a breach of contract action. A shareholder derivative claim. An employment law claim for non-payment of salary. A corporate claim for breach of fiduciary duty. There were [ample] elements of unethical business practices, fraud, bribery, battery, malice, gross negligence, and intentional self-enrichment.

Business Law

Grocery Store Music

Over the last year Bruce Springsteen, Stevie Nicks, The Killers, Joni Mitchell, Shikira, Bob Dylan, Disturbed, Barry Manilow, The Weekend, and fifty-four other musicians sold all or the bulk of their music catalogs to the Sony and Warner music companies of the world. For hundreds of millions.

If you hear any of these artists in a grocery store you can be sure Sony et al are getting paid top dollar for every play.

Most grocery stores, though, don’t spend much on music. They don’t have to, there are ten of thousands of songs by thousands of groups and singers available for pennies.

Grocery store music, after all, exists mostly to cover up the clicks, whirls, thuds, groans, creaks, and other store noises to create a better shopping environment. Industrial psychologists figured that out during the Eisenhower administration. It’s not there to remind anyone that Tommy Tutone was once a thing.

Let's start with two premises: first, when someone forms a band they are forming a company; second, the songs are products and assets.

Communication is Everything

If you went to law school in the early ‘90s and took Wills, Trusts & Estates you may have run across this story in the casebook - well, the shell of the story, a little research fleshed it out. It is probably still the best punchline ever found in a casebook.

It goes like this:

There was an eccentric old man who lived in the middle of nowhere. He lived on a rundown old farm, hoarder-like. No heat, no air conditioning, he walked into town for groceries, brought them back in a wheelbarrow that barely wheeled. He kept chickens, he had to put the eggs in a bucket hung on a tree branch to keep snakes from eating them.

All this despite the fact, as his family and friends knew, he was wealthy.

They also knew he had a will. They knew it because he told everyone. He was quick to add that he was not above changing his will if a potential heir displeased him.

Business Planning

A Small Town and a Forced Sale

A business planning story from a colleague in New England:

It’s a typical New England river town – once a thriving center of manufacturing, now it’s just a tired downtown, magnificent but abandoned brick mill buildings scattered on the riverbanks, and the rundown Victorian homes of the owners and execs. Even the river has seen better days.

It started its long trek downhill during the late 1920s. The advent of air-conditioning and rise of cheap labor in the South quickly stripped away businesses that had been thriving since before the Civil War. The final nails in the coffin were the Great Hurricane of 1938 and devastating floods in the mid-1950s.

By the 1970s, downtown was almost completely boarded up. It's too far from a city for people to commute to work and there were no jobs in town.

Then, two brothers came along. They looked like twins – they’re both tall, thin, avuncular, with pleasant, laugh-lined faces – though they were three years apart in age.

Business Planning

A Lesson From Billions

If you follow Showtime's Billions you can’t miss the fact that every character (except Tuk) turns on a dime when their plans don’t work out (or are stomped into the ground).

Is that possible in the real business world? If so, how do they do it?

It is. How they do it has been alluded to from the first episode of the first season on. It’s been mentioned by name a few times this season: 'selling your position.'

It’s about basic psychology, as Wendy would say. It starts with ‘loss aversion.’ Loss aversion is hardwired into our brains. It's left over from when our ancestors were running around chasing wooly mammoths.

Loss aversion in a nutshell: humans get twice as much pleasure from holding on to $10 than we do finding $10 on the sidewalk. In other words, we put twice as much weight on keeping something than we do getting or experiencing something new.