
Why startups aren’t bothering to go public anymore - cwan
http://www.realclearmarkets.com/articles/2010/11/08/regulations_force_the_rise_of_private_stock_markets_98746.html
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grellas
_Why startups aren’t bothering to go public anymore_

As the cliche goes, "there's no percentage in it," at least for now.

These things do go in cycles and the current down cycle reminds me of the
1970s, when the public markets were in a shambles and it took almost a decade
to recover. Technology had captured the public fancy in the 1960s and brokers
were trumpeting the so-called Nifty Fifty (i.e., stocks on which you could
never lose, such as IBM and Xerox), only to have the markets fall and fall
hard by the early 1970s. Throughout that decade, then, the public markets
featured primarily old-line industries/companies with low P/E multiples, with
dim prospects for any form of startling growth, and with limited appeal for
the mass of investors. Then, too, that decade featured economic malaise, 14%
annual inflation, 18% interest rates, ultra-high individual tax rates, and an
absence of vehicles by which individuals could easily participate in the
public markets (e.g., no widespread 401k-type vehicles).

This all changed with the flowering of startups in the early 1980s, as
Regulation D (1982) cleared the way for a healthy investment environment to
get companies launched easily and as the macro-environment became more
favorable to investors (low inflation, low interest rates, lower capital gains
tax rates, etc.). Startups essentially changed all of world commerce during
the next two decades (and beyond) and this led to the unparalleled growth of
the NASDAQ as a repository for successful startups whose stock became liquid
and freely tradeable. During the early part of that era, the barriers to going
public were very low (e.g., little tech companies would go public in the late
1980s to raise as little as $2M). There was a cost to going public even back
then in the need to file quarterly and annual disclosure documents, in the
need to do formal audits, and the like, but these costs were minor in relation
to the upside of gaining liquidity.

All this culminated, however, in the mania of the internet bubble which peaked
in 2000 and this in turn led to countless junk offerings made to the public in
order to capitalize on the frenzy. Essentially, worthless "concept" companies
were offered in droves to public purchasers looking to get rich quick and
these all collapsed when the bubble popped. This in turn caused a loss of
public confidence in the markets and led to a new malaise from which we have
never recovered. Add to that the catastrophe of the meltdown during the past
couple of years and we will be lucky if we get any semblance of robust public
markets again before perhaps another decade passes.

However, just as the low barriers of the 1980s, etc. led to some excellent
outcomes for startups, followed by a speculative orgy and a collapse, so too
the regulatory reaction to all this has gone to excess and is plainly limiting
companies from wanting to go public. The article does a pretty good job of
pointing out some of this excess and, regardless of details, the result is
that only a very few startups can even _begin_ to contemplate going public,
with many not bothering to do so.

A few consequences of all this (affecting startups at _all_ stages):

1\. Most startups are forced to go the M&A route to get liquid and this in
turn allows acquirers to low-ball on price and to squeeze on terms (e.g., more
earn-outs, more gotcha terms, etc.).

2\. The regulatory mindset (which I see as a reversion to 1970s-style
thinking) is dominated by lawyer-like concerns and is by no means limited to
public companies. For example, IRC 409A was passed to ensure proper valuation
of options and other forms of deferred compensation. It now requires even the
earliest-stage startups (which have been funded) to incur needless compliance
costs by getting "independent valuations" at many stages where no one would
have even thought twice about the subject before. Another example: the
tightening up of requirements on who is an "accredited investor" - people were
relieved when startups were able to dodge a bullet in the Dodd-Frank
legislation concerning this issue but even that legislation opened the door to
the SEC to add new rules and burdens in the not-too-distant future (efforts
are already afoot, e.g., the NASAA is proposing that the SEC limit accredited
investors to those who have $1 million in liquid investments - see
<http://www.startuplawblog.com/?p=650>). It is easy to brush this sort of
thing off but there is a clear pattern of reverting to 1970s style regulation
and hence _increasing_ barriers to investing, all in sharp contrast to what we
have known in the recent past.

3\. Auditing procedures have been affected by SOX to the point where even
routine audits can run into six-figure costs for small companies. Public
audits are now horrifically expensive, where even a small NASDAQ company can
easily have such costs run up to close to $1 million annually.

4\. Sitting on the board of a public company is now something of a menace.
Therefore, those who make the key decisions whether or not to take a company
public have a natural disincentive to wanting to go in that direction, quite
apart from regulatory compliance costs.

The point is that there are now huge barriers, economic and legal, to going
public - the exact opposite of the climate of the 1980s when we last busted
out of a malaise and saw an explosion of companies availing themselves of the
public markets. These barriers exist because of larger trends that took quite
a while to develop and they will not go away soon. I am an optimist about this
issue but also a realist. The problems will eventually be corrected but not in
the short term. It will take considerable time.

~~~
eru
Thanks for the insideful comment. Do you know something about the situation in
other countries? I could imagine startups floating their shares in, say,
London, Hong Kong or Singapore instead. (Or would this not change the
regulatory regime?)

------
T_S_
A few years ago, I invested in a small private company. I could call the CEO
and he could tell me all his problems and prospects. I couldn't trade the
stock very easily but I knew how the company was doing.

Then it went public. Suddenly the access to the CEO ended and the only
information I got was from a 10Q. The company changed strategy to one that I
didn't like, and I never got a good explanation.

Ironic that public = opaque, while private = transparent.

Our regulations are too much aimed at promoting liquidity and not at promoting
correct valuations. We would be better off if investors were paid to make
their horses run faster rather than switching horses in mid-race all the time.
But they can't do this without real transparency.

~~~
sbov
I'm not well versed in stock/securities laws, but I would imagine it would
have to do with this: <http://en.wikipedia.org/wiki/Insider_trading>

The CEO couldn't possibly take personal calls from every investor after going
public. I don't feel particularly bad that someone can't get privileged
information from the company that wouldn't be available to other investors.
These regulations are for fairness.

~~~
T_S_
You are correct that the CEO cannot favor investors due to SEC regulation and
simple fairness. However, the issue raised is that companies use these regs as
an excuse to draw the curtains and provide _less_ information on the whole.

This is bad for economic decision making on the whole. For example, it leads
to greater volatility and securities prices that don't track value. It also
places managers into a kind of priesthood with privileged access to
information. Abuses ensue.

------
krschultz
I'm not convinced a company like Facebook is avoiding going public because of
SOX. Facebook has >2,000 employees and massive revenue, they can't afford to
have a decent accounting department? Facebook is significantly larger and has
higher revenue than the majority of publically traded companies.

And considering how many Facebook employees have stock, you would think they
would all be clamoring for an IPO.

Facebook has a shockingly high valuation, perhaps they are afraid that if they
IPO it will not match expectations during this economy. Better to wait until
boom times and get great return on your IPO than do it now with stock prices
depressed.

------
ig1
SOX is the reason why pretty much everyone avoids going public in the US
anymore. Many international companies that would have previously floated in NY
now do so in London (which has now overtaken NY as the largest foreign equity
market). The cost (typically in the couple of millions for a small company) is
simply too high.

~~~
mrj
The cost is small compared to the stifling rules imposed on IT...

------
ceejayoz
"Profitable, high flying startups like Facebook and Zynga don't bother going
public anymore."

Aren't Facebook and Zynga widely expected to go IPO soon?

~~~
turbodog
"Profitable, high flying startups like Facebook and Zynga don't bother going
public anymore."

Um, Facebook and Zygna aren't startups anymore. Startup != privately-held
company.

------
bigtech
This strikes me as a good thing. For those who want the wild west, go to a
private exchange. For those who want well-regulated companies, go to a public
exchange.

~~~
imack
To my knowledge, one must be an accredited investor to go to the private
exchange. Thus, the rich are the only ones able to take the risks to become
richer.

------
mattsidesinger
It's that pesky Sarbanes-Oxley I tell ya!

------
scrod
> _Why are we content allowing Washington to replace the judgment of millions
> of private investors with the whims of a handful of bureaucrats trying to
> score political points playing with taxpayers' money?_

Nice try, but two can play at that game:

Why _not_ allow 300 million individuals the ability to influence the
ecological destiny of their own land and country through democratic means,
rather than of a handful of billion-dollar investors who pledge allegiance to
no one but themselves?

I will _always_ support one vote per person over one vote per dollar.

~~~
T_S_
Hang on a second. Let's look at the full quote and then think for a minute.

> _Meanwhile Uncle Sam pours hundreds of millions in grants and loan
> guarantees into half-baked "green" startups, an industrial policy tailor-
> made to attract charlatans and losers. Why are we content... allowing
> Washington to replace the judgment of millions of private investors with the
> whims of a handful of bureaucrats trying to score political points playing
> with taxpayers' money?_

That's a better version of the quote.

The government _could_ have a different policy. Leg #1: Tax the hell out of
carbon emissions (since the price of energy doesn't include the harm of carbon
emission). They could even lower other taxes and write poor Grandma a check.
Behavior would change and any idea that will save energy will find investors.
This is not enough though: Leg #2 Pay people to sequester carbon, as long as
it can be verified scientifically. Nobody would undertake this activity
without subsidy.

Under this policy what role is there for government officials to decide what
is the best technical means to reduce carbon emissions? Not much. Would it be
less effective than current policy? I think it would be _more_ effective.

Why don't we have this policy? Two reasons: Government wants to be handing out
the checks--one by one. They always opt for the solution which empowers them.
It's human nature.

The other reason: Voters. We all keep hanging on the dream of a technological
fix coming out of nowhere at no cost. No price tomorrow is too high to pay for
comfort today. Part of our sick values that promote consumption as the cure
for every economic ill. I'll trust the voters more after they detox.

