Our Case in Point series is a blog written by David Shlagbaum, Senior Counsel/Facilitator and the Head of Pallett Valo’s Family Business Law Group. His series presents case studies focused on real life challenges faced by Family Businesses and Private Enterprises. While David regularly deals with these types of issues in his practice, all names, businesses, events and incidents are used in a fictitious manner. Any resemblance to actual persons, living or dead, or actual events is purely coincidental.
Shop Partner Inc. (“Shopco”) has an online retail loyalty rewards business. It competes for market share with a number of companies centred in Ontario and on the West Coast and has, over the past 35 years, evolved into a significant player, securing an impressive roster of retail clients. Over the last few years, Shopco has lost a number of clients to stiffer competition who do substantially more advertising and are prepared to operate on lower margins.
Peter Cassidy is the founder of the business. Candice and Joanne are part of Peter’s management team and have been with the company for 15 and 20 years, respectively. Over the years, they have been promised an ownership position in the business but Peter has never followed through. More recently, a head hunter has approached Candice and Joanne and has offered them a position with a competitor that includes a substantial salary increase and a stock option plan.
Candice and Joanne have approached Peter and told him about the offer from Shopco’s competitor. Their preference is to remain with Shopco but they have reached a point in their careers where they have to plan for the future and, without an equity stake, they feel vulnerable and undervalued. Peter regards this latest news as a form of disloyalty but is not anxious to lose these prize employees and agrees to start a conversation about share ownership.
Peter insists, if Candace and Joanne want to be owners, they must pay market value for the minority position he is offering them. Peter brings in Calvin, his accountant (who is also his brother-in-law) and Calvin tells them what he thinks Shopco is worth. Candace and Joanne get advice from their own accountant, Mark, to get copies of the last three years of Shopco’s financial statements and to consult with a CBV (chartered business valuator).
In a meeting with Candace, Joanne, Mark and the valuator, it becomes clear that Shopco’s revenues have seen a steady decline, that Peter has been withdrawing all of the profits annually and running a raft of personal expenses through the company, to the point where Shopco is currently in a deficit position and will likely have trouble making payroll, let alone have enough money for a more aggressive marketing campaign in the next year. Candace and Joanne have never been permitted to see Shopco’s financial statements. They are in shock.
Candace and Joanne call a meeting with Peter, who insists on having his brother-in-law, Calvin, join them. Candace and Joanne bring Mark along and Mark introduces the valuation and proceeds to show how the business is worth a fraction of what Calvin valued it at. Peter, supported by Calvin, is incensed. He insists that the numbers don’t tell the whole story, that his company is a major industry player and that the value Candace and Joanne have come up with is a joke and is designed to penalize him because he’s had a few bad years lately. Peter also expresses his disappointment with Candace and Joanne’s lack of gratitude for everything he’s done for them over the years. Candace and Joanne reply that, although they appreciate what he has done for them, if he expects them to pay what amounts to a premium for their shares, the company is going to have to start budgeting and adopting some fiscal restraints, beginning with Peter’s elaborate expense account. Peter’s reply to that is he’s never had anyone look over his shoulder and he’s not about to allow that now.
Things are looking bleak. Joanne is ready to accept the third party offer. Candace is an emotional wreck. Her heart lies with the company she has helped grow over these many years but her head is telling her this story will not have a good ending. Mark, who has known Candace and Joanne for many years, is concerned how this will affect their relationship and he suggests to them that they make an appointment to see Tanya, who is a lawyer and a facilitator specializing in shareholder disputes.
Tanya meets with Candace and Joanne and takes them through what the facilitation process would look like, advising that, for the process to work, Peter would have to agree.
Peter reluctantly agrees to give the facilitation process a chance but insists that Candace and Joanne should pay Tanya’s fee. With a little bit of arm twisting and some words of wisdom from Peter’s wife, they ultimately agree to split Tanya’s fee three ways.
Tanya meets separately with Candace and Joanne. Candace thinks if they can just get Peter to submit to a budgeting process, they can bring him around over the next few years. Joanne says “This business is going into the dumpster! There’s no money for marketing. We can’t pay our employees. We’re losing clients hand over fist and Peter is a stubborn old mule who is untrainable!”
Peter insists on bringing his brother-in-law Calvin to the meeting with Tanya. The meeting with Peter and Calvin is difficult. Tanya tries to explain the difference between being the boss and being a partner, the duty of good faith owed to your partners, and the importance of professionalizing the business and adopting best business practices. Peter insists that his purchase price request is reasonable. Calvin agrees. Peter also says that, after all the years ‘he looked after them’, Candace and Joanne should be grateful and shouldn’t be looking over his shoulder at how he uses his credit cards. Calvin agrees. Tanya talked about Shopco’s financial situation and Peter discloses he tried to get an increase in his operating line but was turned down. The bank was insisting that Peter put up his house as collateral for his personal guarantee and Peter walked out of the negotiations with the bank. Peter says he’s prepared to let Candace and Joanne pay the purchase price over five years but nothing more. Calvin agrees.
It became clear to Tanya that Peter, buoyed by Calvin, was convinced Candace and Joanne wouldn’t jump ship and that as long as Peter had Calvin at his side, Peter couldn’t see how precarious his situation was. Tanya tried setting up a meeting with Peter without Calvin present, but Peter was not prepared to face Tanya alone. Tanya then suggested Peter at least make an attempt at budgeting and get Calvin to prepare some cash flow projections so everyone could have a realistic take on revenue and expenses going forward. Peter didn’t think this was necessary. Calvin agreed.
The matter languished for the next six weeks. Joanne accepted the offer from Shopco’s competitor. Candace and Tanya made a last attempt at getting Peter to change his position, but to no avail. A month later, Candace joined Joanne.
Lessons learned: Professionalizing this business should have occurred a long time ago. Ultimately, it was the lack of professionalization that led to the owner of the business having a completely unrealistic assessment of his business. The owner lived in the glory days of his business, turning a blind eye to the competitors who were chipping away at his best clients and ignoring the fact that his key employees were of critical value to the business – and were easy targets for a competitor who was ready to recognize their talents with a generous compensation structure. The owner had successfully insulated himself from realistic, but painful, advice and became the victim of his own intransigence.
Not all marriages were meant to be.
Tune in next month when the Case in Point will be the Case of the Uneven Even.