WeWork sues SoftBank over canceled $3B tender offer
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Of course they’re going do to that, it’s called fiduciary duty to their own stakeholders! Such diligence is something WeWork’s board seemed to casually overlook for far too long.
At this point why would SoftBank buy WeWork shares that are in all likelihood worth little or perhaps even worthless. They’re deciding to cut their losses and move on.
If I sign a contact to buy a house it still has contingency clauses. If 2 days before closing the house burns to the ground I can walk away. Obviously I don’t want to buy a burning pile of rubble. SoftBank is walking away from buying a burning house and that makes complete sense.
SoftBank has a fiduciary obligation to its shareholders. (Note: not all stakeholders. It has a duty to them. But it's not a fiduciary one.)
It also has a fiduciary obligation to WeWork shareholders, by virtue of its Board seat.
This case is, in summary, about how those duties conflict.
Lots of investors have board seats and there are decisions (like if to invest in the next round) where the desire of the board (get more money for a new round) may conflict with the desires of investors that have seats in the board (we think the company has run its course and don’t want to put more money in).
Like any VC SoftBank likely has lots of internal walls and controls to keep those decisions separate. Just because a VC has a board seat doesn’t tie them into perpetually funding every need of the company.
Regardless the case here seems to rely on the breach of conditions and WeWork seems to have offered little evidence that these breaches did in fact not occur. If they failed to meet the conditions SoftBank can walk away.
All that is needed is a weighting factor between the two loss functions (in this case, obligations) to deal with cases like this, and to make the policy (in this case, term sheet) continuous and differentiable as well.
Assuming this is sarcasm. If not, it’s an employment guarantee for litigators.
SoftBank is all about AI and I actually don't think AI lawyers would be a bad thing; it would be nice if they futurized their own corporate and investment structure by design instead of following today's defaults, including "fiduciary duty" in an absolute sense, which I think is an antiquated concept for a society 100 years from now.
SoftBank has the power to redesign concepts such as boards, shares, equity from the ground up, and they should be doing experiments with those ideas.
That doesn't seem like a particular relevant critique here; it's not like naturally occurring corporate boards or some universal law of fiduciary duty are things we've observed outside of humanity. Why shouldn't human-invented heuristics apply to situations that as far as we know only occur in human interactions?
Literally every legal concept is a human-invented notion.
We had kingdoms, slaves, and eye-for-eye punishment before and we largely don't have those concepts today in the developed world.
The same is true for conflict-of-interest, fiduciary duty, and today's version of capitalism.
If I had said "we don't need slaves" 400 years ago, I would have been downvoted like crazy. And here I am, saying conflict-of-interest and fiduciary duty will be antiquated ideas, and I'm being downvoted here today. Let's have an open mind about the future, shall we? I'd rather in a community like this we put everything we blindly assume today on the table with an open mind and discuss how we can change or improve the system.
On a related note, AlphaGo is able to play against itself using a single CPU/GPU, and it gets better by doing so. Why can't a human play against itself and get better as well? Are we brainwashing ourselves into thinking we are unable to do that, and so we are not trying?
European countries began banning the slave trade in the 1400s...
And here I am, saying conflict-of-interest and fiduciary duty will be antiquated ideas, and I'm being downvoted here today
The first will never be an antiquated idea as long as conflicting interests exist. Conflicting interests don't need to be hostile to each other, they just need to be conflicting in the sense that their interests do not align. As I stated earlier, conflict-of-interest rules merely act to either prevent the conflict or require both sides to knowingly waive the conflict in their shared agent.
Fiduciary duty governs the heart of professional workers. It binds lawyers, accountants, etc., to the interests of their clients. This concept will continue to exist as long as their are professions and as long as professionals can have multiple clients.
Morals change with time.
You can, it's called practicing. You are just limited by your resources and imagination. Playing with or against others accelerates your improvement curve.
It's the opposite. It's rooted in the idea that the world is shades of gray, and so the conflict-of-interest rules try to (a) eliminate situations where you would have to choose between conflicting sides, or (b) get permission from both sides to remain after advising them of the conflict.
Trying to turn this into some silly algorithmic calculation is a fundamental misunderstanding of what conflict of interest is or even that most conflicts are not objectively valuable terms that can be resolved numerically.
Last time I checked, WeWork was a going concern with 600,000 customers more or less happy with their service. What would tank them? Are their lease obligations too large and can't be renegotiated?
This entire thing is blown so far out of proportion. Like Tesla, it seems like a company that mostly makes products people like, whose equity is extremely hard to value. Maybe WeWork is worth $40 billion, maybe it's more like Regus and worth $4. This only affects you if you're a shareholder. As a WeWork customer, I absolutely couldn't care less about any of this nonsense.
I'm reminded of a classic finance quote: "If I owe you $100, I have a problem. If I owe you $100 million, you have a problem." This summarizes the dynamic between WeWork and its landlords right now.
This may have been true in December 2019, but with a global patchwork "stay at home" regulations in place, I suspect co-work spaces (especially of the open floor plan variety) are devoid of paying customers. That presumes they're even allowed to be open right now.
I don't remember offhand what the average WeWork customer generates in revenue or if the bulk of those customers are month-to-month vs. mid- to long-term contracts. If the former I don't see why those customers would continue to pay for space and services they don't have the ability to use.
I intend to join again when we're allowed to leave our houses.
But you make a good point: They owe so much in leases they have huge negotiating power, and with COVID-19 they probably have even more since nobody's renting space right now.
How many WW properties are still owned by Adam Neumann?
I just looked it up. WeWork has 848 locations globally. These locations aren't in houses...they're in gargantuan, tall office buildings, worth tens/hundreds of millions of dollars each. If Adam Neumann is a billionaire, AND if he has most of his wealth in commercial real estate (I'm sure he doesn't), he might own...5-10 of these. The rest are owned by REITs like Simon Property Group, Thor Equities, CB Richard Ellis (CBRE), Jones Lang LaSalle (JLL), and others.
What the common discourse around this situation misses is how the landlords are very much on the hook if WeWork blows up. Especially given the broader economic contraction, there is no scenario where the landlords will force WeWork into destruction/non-operation. WeWork might file for chapter 11 bankruptcy and there's going to be some losses, but the odds of this business simply saying, sorry guys, we're closed, pack up your shit and go home, are effectively zero.
A good starter book: "This Time It's Different", often referred to as "Rheinhart and Rogoff" by the authors names. https://www.amazon.com/This-Time-Different-Centuries-Financi... - great overview of how many nation-state debt crises got resolved. In general, most parties end up taking a haircut (not a total loss) and everyone gets on with their life.
Sears and Radio Shack are interesting cases from the corporate (not government) world. There are entire specialist law firms and financing companies that deal just with distressed debt.
What's crazy to me is how much this stuff repeats. Argentina has been a basket case almost nonstop for the last 20 years and yet, people still lend to them. Why anyone would continue to do this over and over befuddles, but just goes to show how crazy things can be.
https://www.amazon.com/Debt-Updated-Expanded-First-Years/dp/...
As opposed to Tesla, WeWork's product is fairly fungible, so if general price levels for office space collapse, they don't have much of a moat to lock in customers.
"...You gotta know when to fold'm.... know when hold'm.... know when to walk away... and know when to run!"
> That is a good little window into mergers-and-acquisitions lawyering. SoftBank’s agreement with WeWork isn’t public, but presumably it says something like “SoftBank can cancel the tender if there are any material government restrictions on WeWork’s business,” but it doesn’t say something like “SoftBank can cancel the tender if lots of customers cancel their WeWork memberships.” The very rough general rule in mergers and acquisitions is that if business conditions get worse, that’s the acquirer’s risk, but if there is some legal problem with the business then that’s the seller’s risk.
Emphasis mine
For instance, large events often have cancellation insurance, but they have found that the terms are much narrower than they expected when they signed the insurance contract.
> the co-working company and SoftBank agreed to a set of performance milestones that WeWork agreed to meet in exchange for the secondary liquidity. Such terms are customary in most financial transactions... SoftBank in its statement last week said that WeWork failed to meet a number of those performance requirements, and said that it was within its rights under the tender offer contract to walk away from the deal.
There's a squishy clause called a "material adverse effect" clause that exists in many corporate contracts, and often has precious little specificity/definition. If I had to guess (as a former lawyer), I'd speculate that an MAE clause is at least part of the justification for SoftBank's pullout.
I am a long way away but from what I can ell from he news I follow it has a good core business. It was run by a crook, who still has his hooks in, but the real estate business was sound.
Until all the income from short term leases evaporates due to curfews and the long term leases they pay keep ticking....
I am a paying wework customer as well as a person who owns commercial real estate. There's not much to see here. Some investors paid too much. Let's all let them take their losses and move on. I'm tired of hearing every tech-hating, New York Times-reading, "in the know" person having some huge opinion on this.
Well, here we are.
You might try finding more diverse news sources. Even comments on HN pointed out this particular issue.
The seller would be in default rather than you having a contingency. I'm sure there's plenty of case law in every jurisdiction covering this scenario.
Maybe SoftBank had no intention of buying out WeWork and were just using it as some sort of ploy to dig deeper into their books, etc.
WeWork is big. CRE is huge. WeWork is not even among the top ten largest lessees in America.
Though as an aside, CBRE is launching its own co-working arm named “Hana.”
Two articles from Sept 2019 suggest WeWork was, at least at that time, the largest private office tenant in NYC, London, and Downtown Chicago.
https://www.bloomberg.com/news/articles/2019-09-27/wework-la...
https://www.chicagotribune.com/business/ct-biz-wework-postpo...
- According to their financial reports, they burned through $1.4B in Q4 and they ended 2019 with $4.4B in "cash and commitments".
- The $4.4B number is comprised of $1.3B in cash, $2.2B in LOCs from SoftBank that they can draw against, $800M in Restricted Capital, and $100M in money owed to it by another company from a joint venture.
- Given their burn rate, it's likely that they're actually out of actual cash now and can probably survive for another 4-5 months by drawing down their LOCs.
- However, that assumes revenues remain constant, which they're not - tenants are canceling due to both Covid-19 as well as concerns about WeWork's financial viability.
Realistically, they have until maybe the end of June?
Wework has a dozen locations in San Francisco. If that's a tsunami of office space, then the commercial real-estate market in the tech city of the US is much smaller than I thought.
WeWork’s handling of the coronavirus crisis has also caused some rifts with its membership, with press reports of members angry at it for refusing refunds for spaces they can’t (in good conscience) use. It has also faced criticism from members angry it’s prioritizing rent collection from now very cash-strapped small businesses rather than closing down during a public health crisis.
If you are Softbank do you use this Covid crisis to back WeWork in to a corner even if their suit is legitimate as they might run out of cash before it reaches the courts?
From what I understood SoftBank already owns a majority of WeWork so how does the company they own, suing them work?
It's a fine distinction, especially when those roles are often exercised by an overlapping set of individual people, but it's the management as a collective agent of the shareholders that owes a fiduciary duty to all, including minority, shareholders. Shareholders, as such, do not owe each other or the firm a fiduciary duty.
A textbook MAC would be, I'm buying a house and the house burns down. The core of this litigation is sure to be whether whatever has happened with wework is in scope for the MAC clause in their loan/M&A docs, or not.
On the one hand, they're a real estate company masquerading as a tech company (and getting the funding and valuation unicorns would hope for), and with Coronavirus they have a serious cashflow problem.
On the other hand, there will be a burst of people (re)starting small businesses and wanting space on a flexible basis in a few months time...
And those levels were barely enough to keep WW solvent, never mind profitable.
The only thing that might save WW would be an absolutely unprecedented boom in this sector. And that's really, really unlikely in the short term, and only slightly more likely - i.e. still not very - in the medium term.
And in the meantime, if WW dies there will be knock-on effects for office real estate in general, all the way up the food chain.
I very much disagree. While the shelter-at-home, extreme social distancing regulations may relax, I'm guessing there will be a large percentage of people who will not want to be packed in, in a shared working environment, for at least a year.
I don't think everyone will leave, but business will be way down, and WeWork was marginal in the best of times. It is 100%, completely dead. The only question is how long it will be able to go along in "zombie" status given existing capital and US govt loans.
Read up on WeWork's history and what happened with the Vision Fund investment. The only reason there are so many WeWorks is because they were given so much money that they didn't know what to do with it. And look what happened to that investment.
That said, I know people who use multiple WeWork locations in the same city depending on where they are for client meetings. Plus many other similar office space companies were not as flexible as WeWork (rent an office, it has to have walls, no you can't just get one desk in an open area). And some people really like the "atmosphere".
So who knows?
Personally, I think the reason we have a market is to get these decisions right. I'm aware my own views on the subject represent about 0.000000001% of humanity. So I may dislike WeWork but that doesn't mean they won't double in size and show a huge profit. Or I may love them but that doesn't mean its not a giant ponzi scheme.
Its important I do not to get attached to my own opinions as they're so often wrong :D
Again, just more random musings from me.
I bet they are smiling ear to ear - could have been one hell of a blow for them - buying quickly deflating unicorn startup sitting on a bunch of depreciating assets.
But he still has hunderds of millions..
Who buys all those buildings / assets?
There have to be some pretty good deals out there considering a collapse of WeWork / fire sale and the economy for someone who can manage some these assets.
Real estate in big cities is (generally speaking) quite a closed shop. They had leases.
https://therealdeal.com/2019/11/01/weworks-white-elephant-in...
The buildings that they do own are surely heavily mortgaged, which means that the lender will attempt to foreclose on it if payments are not made. WeWork itself could try to preemptively unload it. There's standard processes for properties with trust deeds attached to them.
From a paywall FT article [1] quoted in Matt Levin's piece ("WeWon't") on this:
> "Thousands of WeWork tenants have refused to pay rent or sought to terminate their leases over the past month, heaping pressure on the lossmaking group as its occupancy level and cash pile dwindles"
[1] https://www.ft.com/content/78dbfb03-f47d-41f3-9bf6-6696e5ef6...
Is this news about that second round funding by Softbank?
There are a lot of terrible managers and terrible employees ruining things for everyone else.
But then again Masa was already possibly the worst investor in the history of humanity, even before the Vision Fund, so who will take note this time? If he lives through the next 20 years he'll probably run yet another, equally idiotic fund.