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Emerging Companies & Venture Capital

Overview

An attorney in an EC/VC practice advises early-stage companies on every legal matter the companies face, from formation to several rounds of venture financings to a sale or an IPO. Emerging Companies attorneys are corporate generalists for the clients and often serve as “outside general counsel” for startup clients before the clients are large enough to hire in-house attorneys. They work with founders to choose the best corporate form (corporation, LLC, etc.), and draft the appropriate forms to create the company. They advise companies on how shares will be valued and divided among various stakeholders. Start-up lawyers help develop a company’s internal policies and procedures and serve as corporate secretaries. They work on the legal documentation for various rounds of private financing and ultimately help navigate an “exit event”—an IPO or acquisition. Junior lawyers often have a lot of client contact and responsibility from an early stage as startups can not generally afford to pay senior attorneys’ billing rates. The relationships with founders can often lead to an invitation to join the company when it is in a position to hire its first in-house lawyer. Startup practices are heavily concentrated in certain markets, including San Francisco and Silicon Valley, as well as Boston, New York (Silicon Alley), and increasingly in Southern California (Silicon Beach).

Featured Q&A's
Get an insider's view on working in Emerging Companies & Venture Capital from real lawyers in the practice area.
Ben Potter, Partner • Jana Kovich, Associate
Latham & Watkins

Describe your practice area and what it entails.

Ben: My practice group works with high-growth companies from formation to a liquidity event. We also represent venture capital firms, growth equity investors, and private equity investors that fund startups. Our work covers a number of growth industries, with a primary focus on tech and life sciences.

Jana: As a member of the Emerging Companies group, I wear many hats. Primarily, I work as out-of-house, in-house counsel for startup companies at all stages of development. In this capacity, we do everything a startup needs from a legal perspective, often prior to company hiring a general counsel. I also serve as transactional counsel to investors that fund startups in the context of their investments.

What types of clients do you represent?

Ben: I represent a number of technology startups, including Duolingo and Joby Aviation, as well as life sciences and medical device companies, such as 4D Molecular Therapeutics and Coherus BioSciences. I also represent venture capital firms, including Andreessen Horowitz and General Catalyst.

Jana: I represent venture-backed growth companies, from formation all the way through to exit. I also represent venture capital funds, private equity funds, family offices, and corporate VC divisions (including the pharmaceutical company Baxter) that invest in the space. With such a variety of clients, there are many different interests, expectations, and goals to navigate. It always keeps you on your toes.

What types of cases/deals do you work on?

Ben: We help companies form and then represent them through a wide range of transactions. We’re effectively their out-of-house, in-house counsel—whether it’s advising on lease negotiations, licensing, venture financings, debt financings, mergers and acquisitions, special purpose acquisition companies (SPACs), or IPOs.

Jana: As Ben noted, we help our clients through a wide range of transactions and can help with anything that comes up in the life cycle of a startup. Most of my time is spent helping companies with raising capital (through preferred stock and convertible debt financing transactions), as well as M&A transactions (whether in an exit transaction or in an acquisition to help grow our client’s business).

How did you choose this practice area?

Ben: I helped start two tech companies out of college. Based on those experiences, I knew that I wanted to help build companies and work with founders. But I also wanted to be at a law firm where I could handle a variety of transactions, including M&A. I don’t feel there’s a firm better situated than Latham for someone interested in such a variety of work.

Jana: I came to Latham as a summer associate without a clear idea of what I wanted to do, and I tried a lot of different types of work through the unassigned program. Upon returning to law school at Duke University, I took a clinic focused on startups and something just clicked. The work was so varied, and the goals were so tangible. When I came back to Latham full time as a member of the unassigned program, I expressed interest in working in the Emerging Companies group. I was pleased to find the work was as varied, interesting, and rewarding as I experienced in a classroom setting and decided to go head first into the practice in Chicago.

What is a typical day like and/or what are some common tasks you perform?

Ben: No two days are the same (which is one of the best parts of my job), and I usually work on a variety of matters. Today, for example, I covered a board meeting for a company, advised on a SPAC transaction, advised a small startup on how to raise capital, advised a CEO on an employee hiring matter, and had a call with a technology company buying a business.

Jana: For someone to be a great emerging companies associate, multi-tasking is critical. My day-to-day experience is similar to Ben’s—there is never a dull moment, and no two days are alike. A typical day for me ranges from tending to housekeeping items for my clients to negotiating and drafting financial documents to counseling and advising my clients.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

Ben: While having real-world experience in business is a hugely advantageous stepping stone to this line of work, it is not a must. Read a lot, especially on practical topics related to business and creating a company—like how to read a financial statement. That way, you will become familiar with the issues facing clients.

Jana: A critical skill that can be cultivated while still in law school is communication. Any course that involves the practical application of communication skills, such as a clinical experience or a class on negotiation or client counseling, is a great way to prepare for your professional career as a transactional attorney.

What do you like best about your practice area?

Ben: What I like most is the ability to work with companies of all sizes on all types of transactions and projects. I also enjoy building long-term relationships with people and helping build companies. In my role, I get to play a small part in the life of a lot of different companies that are doing really cool things, whether it’s developing vaccines, creating online learning programs, or developing new communication tools. It’s a true privilege to work with such talented innovators.

Jana: I love working with the clients. Entrepreneurs are so energizing, and they are innovating all aspects of our lives—from phone apps to cancer treatments. It’s rewarding and stimulating to work with the leaders of startups and participate in creative approaches to problem solving.

What are some typical tasks that a junior lawyer would perform in this practice area?

Ben: The tasks for a junior lawyer would include drafting agreements for equity financings, providing clients day-to-day advice on various matters, and working as part of a larger team on transactions and due diligence, as well as executing on getting deals closed.

Jana: A junior lawyer should expect to have visibility on all aspects of the transactions. They may assist with or independently run the entire closing process in a deal.

How do you see this practice area evolving in the future?

Ben: I think clients are increasingly going to seek out lawyers who can provide a wide range of services quickly using legal technology, especially as the capital markets continue to evolve for tech and life sciences companies.

Jana: We can expect more geographic expansion of the venture capital market outside of Boston and Silicon Valley. Not only have we already grown in Chicago, but the market has also expanded in New York, San Diego, and Century City/Los Angeles. I think we’ll also continue to see a growing emphasis on the social and environmental impact of venture capital investments, including increased demand for diverse legal teams.

What kinds of experience can summer associates gain in this practice area at your firm?

Ben: Summer associates will have the opportunity to get real and meaningful work experience—like sitting in on board meetings, interacting with founders, assisting on financing transactions, and participating in an IPO.

Jana: As a summer associate, you’ll gain the same level of experience as if you were a first-year associate. For example, one summer associate on our team was deeply involved in closing a deal for Rivian, a tech company creating all-electric trucks and SUVs. Rivian was raising billions of dollars, and our summer associate joined all of the calls with the clients, edited documents, and helped prepare and manage the closing process. The associate managed the details of the deal and kept everyone working on it up to date. Since emerging company deals typically only take four to six weeks, you may have the opportunity to do a whole deal from start to finish.

Ben Potter, Partner, and Jana Kovich, Associate—Technology & Life Sciences

Ben Potter is a partner in the Silicon Valley office of Latham & Watkins. He advises private and public companies, venture capital firms, and private equity firms, as well as investment banks involved in the technology, life sciences, and other growth industries. Mr. Potter serves as global chair of the Technology Industry group and global vice chair of the Emerging Companies practice. Prior to his work as a lawyer, Mr. Potter received an M.B.A. from the University of Michigan, worked at IBM Global Services, and founded two education technology startup companies in New York City.

Jana Kovich is a corporate senior associate in the Chicago office of Latham & Watkins and member of the Chicago Recruiting Committee. As a member of the Emerging Companies practice, she represents startups, venture capital firms, and family offices across a broad range of industries.

Jonathan Goodwin, Partner • Saarah Woodby, Associate
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP

Describe your practice area and what it entails.

Jonathan: I represent venture capital firms in their formation and general operations. When a venture capital firm is raising money from its investors (such as endowments, foundations, and pension plans), I represent the venture capital firm throughout the formation process. We work with the fund managers to determine the terms for the new fund (e.g., carried interest and management fee) and draft the fund’s governing agreements. We then negotiate those agreements with the fund’s investors and their counsel. Once the agreements are settled, we handle the closing process. In addition, venture capital firms have a number of ongoing matters in which we assist, ranging from personnel matters to securities filings. In the last two years, we’ve seen a lot of IPO activity, and our fund clients that have large positions in these companies need to address the mechanics of having a portfolio company go public.

Saarah: My practice generally focuses on helping to build and grow startup companies through multiple avenues. On the company side, we work with startups in various stages of their life cycles (from formation to exit events), providing general corporate advice and facilitating the legal aspects of corporate transactions and fundraising events. On the investor side, we primarily focus on helping venture capital funds invest in startups in equity and debt financing rounds.

What types of clients do you represent?

Jonathan: We represent venture capital firms with assets under management, ranging from tens of millions to billions of dollars. We represent first-time fund managers and longtime venture capital firms (many of whom created the venture capital industry). Our clients invest in geographies across the world, including the U.S., Europe, Israel, and Southeast Asia, and make anywhere from $500,000 seed-stage investments to $50 million growth-stage investments.

Saarah: We represent tech startups that are either venture backed or seeking to become venture backed, as well as venture funds that vary in size and experience, looking to invest in these types of companies. Many of the businesses we work with develop interesting and innovative solutions (from apps to websites to consumer products) to improve everyday life using cutting-edge technology.

What types of cases/deals do you work on?

Jonathan: I have recently closed funds for notable venture capital firms, including Jerusalem Venture Partners, Kleiner Perkins, and Sequoia Capital.

Saarah: I work on a wide array of transactions, from financings to mergers and acquisitions. For many of our clients that don’t have in-house counsel, we play more of a hybrid role than just a standard transactional legal role, advising on both business and legal matters on a day-to-day basis.

How did you choose this practice area?

Jonathan: I appreciated the variety of the work involved with representing venture capital firms. The fund practice allows you to work on a range of issues and, in many ways, be a generalist to venture capital firms. In addition, the fund practice allows you to develop a unique skill set. Gunderson has a premier fund formation practice group, so you can chart your own path and build a practice around early-stage fund managers, late-stage fund managers, or sector-focused funds—such as cleantech- or big-data-focused funds.

Saarah: After spending a few years in the banking, capital markets, and mergers and acquisitions practice areas working with large institutional clients, I developed an interest in playing a more active role in the day-to-day growth and development of a client’s business. I enjoy being able to advise clients on not only legal, but also business-related matters, as well as the challenges and opportunities for creativity that come with working in this space.

What is a typical day like and/or what are some common tasks you perform?

Jonathan: We have a lot of client interaction and spend a lot of time talking to clients about what we’re seeing in the market. While an individual attorney may be working on multiple fundraisings at a time, for clients, it may be the first or second time that they’re raising a fund. There is a lot of counseling involved and talking people through transactions. For example, this morning, I had a call with a client to walk through a summary of terms for the client’s new fund, and then I had a call with another client to discuss annual SEC filings that the client must make at the beginning of the year.

Saarah: First off, there’s a typical day? It really depends on what your clients have going on at the time. I might have a couple of investor- or company-side financings going on any given day. On the venture-fund side, we are negotiating certain legal points in transaction documents and looking out for particular things that fund clients are typically concerned about in the documents. A point that’s typically focused on quite heavily, for example, is making sure that each party that participates in a deal is on the same page with respect to the equity ownership of a company. Other day-to-day tasks will include attending to general questions that arise, such as how to administer equity plans, deal with general business concerns, etc. Again, there really isn’t a typical day.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

Jonathan: I would recommend law students focus on corporate and tax classes. It’s also helpful to be familiar with financial statements, accounting concepts, and Microsoft Excel.

Saarah: Interpersonal skills are very important because you’re going to have a lot of client-facing interactions on a daily basis, even if you’re a fairly junior associate. In addition, organization, attention to detail, and time management are also really good skills to have because this is a high-volume practice where you’re managing many clients at one time. It’s important to come up with your own personal system with respect to how you’re going to prioritize things and manage the multiple tasks that come in every day.

What is unique about your practice area at your firm?

Jonathan: One of the things that’s unique about us is that we generally represent the venture capital firms only (or the “general partner/GP” side, as you might hear in the industry) and not the investors who invest into the venture capital firms (the “limited partners/LPs”). Clients appreciate our focus on the GP side, as we are able to be better advocates for our clients’ interests—they recognize that we’re wholly interested in them. We aren’t spending our mornings negotiating one perspective for one client and then turning around and negotiating the opposite perspective for another client. In addition, our training materials, form documents, and entire practice group are able to be focused for the same purposes. As an attorney in our group, this makes your practice more efficient, and you are able to learn and scale more quickly.

How do you see this practice area evolving in the future?

Saarah: There’s been a push to start integrating more and more technology into this practice area, so we’re figuring out ways where new technological innovation can help us be more efficient and do a better, quicker job on whatever the task may be. Since we’re working in the tech space, I think there will probably continue to be newer developments that will help lawyers do things more quickly and more efficiently.

In what ways has the coronavirus pandemic affected your practice? How have you adjusted to lawyering in the wake of COVID-19?

Jonathan: We worked with several VC firm clients who raised new funds in the past few months on an accelerated timeline as they see investing opportunities in new startup companies being formed to address the many changes in the way people work and live brought on by the pandemic. For example, I have heard clients talk about promising investments in startups focused on remote, work-from-home team collaboration. Funds have seen tremendous growth in their portfolio companies that provide online shopping infrastructure and on-demand delivery services. In addition, the strong IPO market in the second half of 2020 provided sizable returns for many of our fund clients. Many funds have been able to make significant distributions to their investors and are expecting additional IPO returns in 2021. Those distributions provide liquidity to the fund’s investors and fuel commitments to the next generation of venture funds.

As a firm, we have focused on remote collaboration and maintaining close connections with colleagues. We have regular check-in calls within offices, practice groups, and mentoring pairs. We utilize a number of technologies to stay in touch, from chat to Zoom. Most recently, our Fund Practice group held a virtual wine tasting as a year-end celebration. Our clients have always expected that we use the latest software offerings to close transactions, so moving to a remote environment was fairly seamless for client work—we were using programs like Docusign, Closing Folders, Smartsheets, and Contract Express before the pandemic. We have had an app on our cell phones for years that allows us to make calls to and from our office phone numbers so clients are able to easily reach us.

How is it different working with entrepreneurs in contrast to large corporate clients?

Saarah: One of the clearest differences when you’re working with a large corporate client is that the in-house legal team probably has a very advanced understanding of the space and whatever transaction you’re doing, so there isn’t as much advising needed. Working with emerging companies is different because, more likely than not, corporate transactions and certain business issues can all be quite new for a company, depending on its stage, so there are varying levels of involvement that you’ll have in working through matters. In addition, you’re usually working directly with founders in this practice area who may have more decision-making flexibility than may otherwise be the case in a larger corporate structure.

Jonathan Goodwin, Partner, and Saarah Woodby, Associate—
Fund Formation/Corporate

Jonathan Goodwin’s practice encompasses all areas involved in the formation and general representation of venture capital firms. Jonathan’s clients span early-stage to growth-stage venture capital firms with assets under management in the tens of millions to billions of dollars across a global footprint in the United States, Israel, and China. He has recently closed funds for notable venture capital firms, including Jerusalem Venture Partners, Kleiner Perkins, and Sequoia Capital. Jonathan received his J.D. from Stanford Law School and his B.S. from the University of Tulsa. He is admitted to practice in California and is a partner at Gunderson Dettmer. In January of 2020, Jonathan was named to the Venture Capital Journal’s inaugural “40 Rising Stars Under 40” list.

Saarah Woodby specializes in the representation of emerging growth companies throughout their life cycles. Saarah’s practice focuses on general corporate counseling, venture capital financings, and mergers and acquisitions. Saarah represents a wide variety of technology companies, including consumer internet, software, telecommunications, and entertainment technology industries, as well as a number of leading venture capital firms. Saarah received her J.D. from NYU School of Law and her B.S. from the University of Pennsylvania. She is admitted to practice in New York and is an associate at Gunderson Dettmer.

Rachel Proffitt, Partner • Danielle Gershowitz, Associate
Cooley

Describe your practice area and what it entails.

Rachel: I’m primarily a business lawyer and work with clients that range from small startups to public companies, with a focus on later-stage representation and navigating liquidity events. Between all of these transformative events, I serve as the day-to-day advisor on a variety of corporate matters and lead teams that support these clients.

Danielle: I advise fast-growing companies as they evolve from newly formed entities to mature companies, with an emphasis on venture capital and growth equity financings. I also counsel clients on general legal and business matters and work with Cooley’s specialists as needed.

What types of clients do you represent?

Rachel: I’m industry agnostic and tend to gravitate toward founders that I connect with and businesses that excite me. Clients range from seed-funded enterprises in stealth mode to larger clients, like Metromile, KeepTruckin, Instacart, Procore, and Unity. I also represent investors in financings and strategic transactions.

Danielle: My clients span a range of industries and stages of development, but the common thread is that they are growing quickly and generally have raised or plan to raise money from venture capital investors. I also represent venture capital funds in their investments.

What types of cases/deals do you work on?

Rachel: Day-to-day corporate counseling, equity financings at all stages of a company’s life cycle, secondary sales/tender offers, M&A (buy and sell side), IPOs, SPACs, and public company counseling.

Danielle: My practice is divided between transactional work and advising clients on day-to-day legal needs. The transactions are primarily for fundraising purposes, like convertible note and equity financings, but also include liquidity events, like secondary sales, tender offers, and mergers and acquisitions.

How did you choose this practice area?

Rachel: I like the variety of work and the ability to follow my clients through their life cycles—I’m very relationship driven, and this enables me to build long-lasting connections with the teams.

Danielle: Before law school, I worked for a technology company in Shanghai, China, where I was responsible for a range of business initiatives. I loved the unpredictable mix of the work and the fast pace. When I was considering firms in law school, I looked for similar roles, and it seemed a natural fit to combine my prior startup experience with my legal skills.

What is a typical day like and/or what are some common tasks you perform?

Rachel: My days are rarely predictable. I could be counseling a board on a potential transaction, discussing fundraising strategy with a first-time founder, or working through a contentious employee situation—and everything in between. I spend a lot of time on the phone. Some days it feels like I don’t get to my emails and drafting until the evening.

Danielle: Each day is varied, but there is generally a mix of speaking with clients and opposing counsel, reviewing and drafting documents, writing and responding to emails, and attending board meetings. Because I work with clients throughout their life cycles, there is always something new, from a term sheet for a transaction to a question about opening an office in a new city. I also spend a lot of time working with the internal team at Cooley to train and teach junior associates.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

Rachel: I learned the most by doing and surrounding myself with really great minds—so any opportunity to work in-house at a company, see this world from the lens of an investor, or just join a firm that has a broad corporate practice would be excellent experience. I also can’t recommend enough working on your communication skills—writing, speaking, etc. I believe success and failure in this job revolve around communicating effectively, reading your audience, being aware of your tone, making sure you’re actively listening—and the list goes on.

Danielle: I don’t think there is one right way to practice in this area, and so there are many different experiences that can prepare you. I personally benefitted from working in a business role because of the perspective I gained. An Excel class is also helpful.

What do you like best about your practice area?

Rachel: I am relationship driven, and earning the trust of my clients and helping them navigate tough issues and transformative transactions is very rewarding. One of the best parts of counseling a client through their life cycle is being able to work with them again on their next venture. It’s a small ecosystem, and these relationships make even the most relentless parts of this profession worth it.

Danielle: The breadth of the legal work and the variety of clients. I know a lot about my core practice area, but I also know a little about all these other practice areas, and that really fits my interests. I also get to learn about different businesses and the problems that my clients are trying to solve.

What is unique about your practice area at your firm?

Rachel: The institutionalization of clients and the collaborative nature of our practice enables us to achieve optimal outcomes for our clients. This isn’t about any one person, it’s about a team. That togetherness provides our clients with an unmatched level of service and the most beneficial outcome.

What are some typical tasks that a junior lawyer would perform in this practice area?

Rachel: Before you can oversee, you need to do, so we ensure that junior associates are exposed to the foundational aspects of a given transaction. If you’re working on an M&A transaction, you’ll need to be intimately familiar with the data room and diligence materials to help populate a disclosure schedule. If you’re working on a financing, you’ll need to be proficient with the capitalization table to understand necessary consents and voting thresholds and otherwise run the mechanics to get the transaction closed. With junior attorneys, we try to instill very early a sense of responsibility for process and coordination. The eager associates who are proactive and who want to understand the why behind what they’re doing tend to develop quickly.

Danielle: Because our clients engage in various types of transactions, junior lawyers will also get to work on a variety of deals, and the tasks will vary accordingly. On a public offering or large merger, that would typically include diligence and drafting ancillary documents. On a venture capital financing, a junior associate will have more opportunities to draft primary and ancillary documents, as well as to tie out the company’s capitalization history.

How is it different working with entrepreneurs in contrast to large corporate clients?

Rachel: Every entrepreneur has one go at being a first-time founder, and we are lucky to work with many of those folks. Often, for those clients, you are one of a few trusted advisors, and they look to you for most things; it is a place where bonds develop very quickly and where you’re often consulted for non-legal questions given your other experiences and learned perspectives. In those cases, you are often the only lawyer involved because an in-house legal hire is usually months or years off. By contrast, large clients often have in-house lawyers (teams of them, in many cases) and may in fact work with other firms as well, so they come to you for specific reasons, and often more sophisticated problems, and are looking for very specific help in a way that may be different from a non-legal executive asking for advice. Larger clients often tend to be doing more complex and frequent transactions (being acquisitive, raising capital, and more).

Danielle: While many later-stage clients do have in-house counsel, most of my clients do not have a legal team, so my primary contact is the management team. Part of the counseling role involves educating the client on the risks by translating the legal issue at hand into practical examples.

Rachel Proffitt, Partner, and Danielle Gershowitz, Associate—
Emerging Companies & Venture Capital

Rachel Proffitt heads Cooley’s San Francisco Corporate practice and serves on the firm’s board of directors. She practices corporate and securities law and represents public and private clients, as well as venture capital and investment banking firms and other institutional investors, across a broad range of industries. Her practice focuses on general corporate and complex transactional matters, including venture capital transactions, public and private securities offerings, mergers and acquisitions and other strategic transactions, and public-company disclosure and corporate governance.

Danielle Gershowitz advises technology and high-growth companies throughout their life cycles on incorporation and formation; seed, strategic, and venture capital financings; corporate governance; mergers and acquisitions; and public offerings. She also regularly represents investors in financing and restructuring transactions, and she works with growth companies across industries, including fintech, artificial intelligence, digital health, e-commerce, and consumer products. She also serves as a guest lecturer on the legal issues confronted by emerging growth companies and venture capital funds, including at Cornell Law School and Cornell Tech.

Andrew Pusar, Partner • Kristin Gerber, Associate
Goodwin Procter LLP

Describe your practice area and what it entails.

Andrew: I represent public and private emerging growth technology companies as well as venture capital funds and investment banks focusing on technology companies. For our emerging growth clients, this entails advising them through every stage of the corporate life cycle—from initial formation, through each financing event, and ultimately (fingers crossed) through a successful initial public offering or acquisition. 

Many early-stage companies do not have an in-house general counsel and, therefore, request that we advise them on all aspects of their legal activity. This fosters a long-term, collaborative partnership where we work side-by-side with management teams to navigate new legal challenges as they scale and capitalize.

In this role, our goal is to look around corners and get ahead of potential roadblocks for our clients, so they can continue to focus their attention on building tremendous businesses.

What types of clients do you represent?

Kristin: One of the best things about my practice is that I work with such a wide variety of clients. I get to work with both experienced founders who have already successfully exited multiple prior companies and first-time entrepreneurs with their very first business ideas, often straight out of the lab or classroom. It’s incredibly rewarding to not only help a business grow and evolve over time, but also to support its founders as they go through the same transformation as business operators. We also represent investors and acquirers, and it’s fun to tackle each new transaction, solving problems that arise together, using our collective past experience, and often thinking outside of the box to develop novel solutions on the fly.

What types of cases/deals do you work on?

Andrew: One of the most rewarding aspects of working with technology companies is the diversity of transactions that we are able to help them navigate. I have been lucky to be a part of a number of interesting deals over the last couple years. A few that stand out include:

  • Toast, Inc., a restaurant technology platform company, in its Series F financing with participation by Bessemer Venture Partners, TPG, Greenoaks Capital, and Tiger Global.
  • Anchor FM, a podcasting platform company, in its sale to Spotify.
  • Phreesia, Inc., a health care technology platform company, in its initial public offering on the New York Stock Exchange.

This sampling of deals demonstrates the breadth of our technology company practice—ranging from a venture capital financing with well-known venture capital investors, a sale transaction to a popular public music technology company, and an IPO for a long-standing firm client operating in an exciting and important market.

How did you choose this practice area?

Kristin: Personally, I knew I wanted to work with emerging technology companies and their founders and investors and be a part of the M&A and venture capital ecosystems even when I was applying to law school. I think that probably stemmed from growing up in the 80s and 90s and living through the dotcom boom and subsequent bust as well as being one of the first generations to use computers regularly in the classroom and witnessing the light speed evolution of technology and the way it has permeated our lives. I was drawn to the fact that these companies’ products and services are frequently disruptive and have meaningful impacts on their industry, often offering novel solutions to systemic issues or technological breakthroughs that shape the way we live. It’s an exciting and intellectually challenging world of which to be a part.

What is a typical day like and/or what are some common tasks you perform?

Andrew: One of the most exciting things about working in the technology space is that no two days are ever the same. One day, I may be helping a private technology client with hiring a new executive; the next day I may be helping a public technology client with preparing an SEC filing to report quarterly results. Our technology attorneys must be adaptable to meet the evolving needs of our clients at any particular time. 

That being said, there are certainly key tasks that we perform for our clients on a routine basis. As one example, we are on the front-lines of drafting and negotiating financing documentation for our private clients. Many early-stage companies fund their operations through venture capital before they generate meaningful revenue. We help these clients structure the economic and governance rights requested by investors at these capital-raising events. 

On a day-to-day basis, we assist our clients with hiring new service providers, preparing for board meetings, executing commercial and partnership arrangements, and maintaining compliance with various regulatory regimes, among other things.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

Kristin: I came from a finance and economics background, and that’s certainly helped me in my career, but I’ve found that great emerging technology lawyers have come from all sorts of backgrounds. I think the common denominator among us is an entrepreneurial spirit and appreciation for building something of value over time. There are tons of books, podcasts, and blogs about the startup ecosystem and the legal issues that arise, but one of my favorites that I frequently recommend to law school students is Venture Deals by Brad Feld. On a practical level, you want to take advantage of the transactional courses that are offered in law school, especially since much of law school curriculum is litigation focused. A solid knowledge of accounting concepts, financial statements, and Excel and other industry tools will serve you well in this practice area. I would also recommend any exposure a student can get to negotiation skills and communications training, as those tools are at the heart of how we represent our clients on a daily basis.

What misconceptions exist about your practice area?

Andrew: One misconception about working with emerging companies is that our clients are solely composed of small companies led by a couple founders working in a garage. Of course, some of our startup clients are in the very early stages of development with a small team hustling to obtain seed financing and build an initial version of their product or platform. But on the flip side, many of our clients—despite being early in their corporate life cycles—have expansive operations and complex organizational structures. These high-growth companies strive to push the boundaries of how people use technology in their everyday lives. In doing so, we must help them navigate ever-evolving legal regulation affecting technology companies, including privacy laws, payment processing standards, employment, and contractor regulations and tax requirements, among others. We must stay on top of the latest legal developments and work collaboratively with our clients to ensure they remain compliant without stifling their innovation.

What is unique about your practice area at your firm?

Kristin: One thing that I think is very unique about our practice area is the ability to develop a network from a very early stage of your career. Your entrepreneur clients are often the same age or younger than you are; you will grow alongside your clients over many years of regular service to them and founders, executives, and investors will move in and out of companies, enabling you to grow your contacts very quickly.  In some other practice areas, the decision-makers are only accessible to the most senior attorney on the team; whereas, in emerging companies, the decision-makers are frequently working directly with the most junior person on the team. As a result, it’s somewhat easier to develop meaningful, long-term relationships with both clients and key service providers in our area of law.

What are some typical tasks that a junior lawyer would perform in this practice area?

Andrew: Anything and everything that an emerging growth company may need! This includes preparing formation documents and incorporating new companies; drafting and negotiating venture capital financing documents; assisting with board meetings; preparing board and stockholder consents; preparing offer letters and employment agreements; managing capitalization tables and stock ledgers; and much more.

Moreover, our junior technology lawyers are afforded a unique opportunity to work closely and directly with emerging companies and their founders. They often receive the first call from our clients for day-to-day matters and function as the “quarterback” for our client service team. By playing this role, our junior attorneys receive firsthand experience on each substantive legal matter that we assist with and quickly become integral to the client relationship.

How do you see this practice area evolving in the future?

Kristin: I truly think that corporate law and practice is evolving almost at the same rapid pace as the technology that our clients develop. Just look at the re-emergence of special purpose acquisition companies (SPACs); the growing commitment to diversity and inclusion in board rooms and beyond; the mainstreaming of environmental, social, and governance (ESG) standards; new legislation and case law being developed around data privacy, antitrust law, and gig economy workers; the steady growth of benefit corporations; and the use of artificial intelligence and other new tools in our transactions. It’s such an exciting time to be a part of this industry. Join us!

Andrew Pusar, Partner, and Kristin Gerber, Associate—Technology

Andrew Pusar, a partner in Goodwin’s Technology Companies and Life Sciences group, concentrates in general corporate and securities law and has significant experience in capital markets transactions, mergers and acquisitions, venture capital financings, SEC compliance, and corporate governance. Mr. Pusar represents public and private emerging growth technology and life science companies as well as venture capital funds and investment banks focusing on technology and life science companies. He has experience advising companies through every stage of the corporate life cycle—from initial financing through successful initial public offering or acquisition.

Kristin Gerber is a senior associate in the firm’s Business Law department and a member of its nationally recognized Technology and Life Sciences groups. Ms. Gerber represents public and private emerging growth technology and health care companies, as well as venture capital funds and private equity and strategic acquirers focusing on software, hardware, biotechnology, pharmaceuticals, and other technology-driven companies. She has experience advising companies through every stage of the corporate life cycle—from initial financing through successful initial public offering or acquisition.

Kat Duncan, Partner • Thomas Kang, Partner
Fenwick

Describe your practice area and what it entails.

Kat: My clients seek my counsel throughout every point of their life cycles, starting from an idea that was maybe born from a college business course to raising capital, recruiting executives, protecting IP, and seeking an exit—and every point in between.

Thomas: Corporate attorneys are in the trenches with companies’ leadership from the jump and get to be involved in nearly every major decision that allows the company to grow.

What types of clients do you represent?

Kat: My clients include 100 Thieves, Big Run Studios, Boxed, Built In, Chegg, DocuSign, Esper, Griffin Gaming Partners, Jam City, King Digital Entertainment, Madison Reed, Madrona Venture Group, Marin Software, Navigating Cancer, Nextdoor, Nurix Therapeutics, Playable Worlds, Primary Kids, Redfin, Responsys, Riot Games, Roboto Games, Shutterfly, SpotHero, Smartsheet, Supercell Oy, Textio, Tiltify, and ZipRecruiter.

Thomas: My clients include Airship, Bonfire Ventures, CloudKnox Security, CommerceIQ, Common Room, Crosscut Ventures, Crosslink Capital, Devoted Health, DiCE Molecules, DISQO, Figma, Holloway, Invoca, Ironclad, Knowable, Menlo Ventures, Modern Animal, Molekule, Nexon, Nift Networks, NimbleRX, Rapid API, Remitly, Rock The Bells, Scout RFP, Searchlight.ai, SEMA Translink, Sonos, Thunkable, Tophatter, Tubular Labs, Unusual Ventures, Ventec Life Systems, VYRL, WorkOS, and Yapstone.

What types of cases/deals do you work on?

Kat: My role spans the life cycle of a company, so I work on deals from when the companies incorporate through whatever path they take. These include venture and debt financings and M&A transactions for my privately held clients. I also work on my clients’ IPOs, SPACs, direct listings, and then capital markets deals once they are public.

Thomas: Ditto! In addition, I represent venture capital firms on their investments in startup companies across the spectrum from early pre-seed to seed stage transactions to later-stage investments in pre-IPO companies. It’s helpful to see deals from both sides (investor and company) as it helps me add value in my role advising on the structure and execution of the transaction.

How did you choose this practice area?

Kat: I am an avid gamer and love consumer products, so I really wanted to find a way to work with these creative and  fun companies. I didn’t understand what corporate lawyers really did until I was a summer associate at Fenwick and got to sit in board meetings, pitch meetings, perform diligence on potential deals, etc. It was cool for me to see how much influence we as lawyers have on the direction a company takes, whether it’s navigating issues in a financing term sheet or avoiding a litigious situation in a deal. Companies often treat me as an outside general counsel and as a trusted advisor on both legal and strategic issues, and it’s tremendously rewarding to be alongside them for the journeys they take as they grow and find success.

Thomas: I love working with entrepreneurs and helping them build and grow their businesses. The practice is entirely relationship driven, and it’s amazing to work with founders who are starting out to help form their companies and grow with them and their businesses as the issues and challenges they face get more complex. Though I work on many deals and transactions for clients, it’s the relationship aspect that keeps me engaged with founders, executives, and investors in the space.

What is a typical day like and/or what are some common tasks you perform?

Kat: Each day is completely different when you work at a law firm because most attorneys are on teams for at least a couple dozen clients. Much of my time is spent working on clients’ day-to-day needs, such as employment issues, board meetings, and one-off issues that pop up. Yet nearly every day, I spend time working on a transaction for one or more of my clients. And there are many days spent putting out fires related to multiple transactions happening at the same time.

Thomas: Fully agree. No day is ever the same. The variety and diversity in clients, companies, industries, and issues really keep things entertaining. And because I am a partner in Fenwick’s newest office, in addition to counseling my clients, I spend a lot of time getting to more people in the Los Angeles and Southern California tech ecosystem, as well as on our Hiring Committee and longer-term vision for Fenwick’s presence and growth in the region.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

Thomas: The best thing to do is try and get experience. For law students, try your first summer working in-house for a tech startup. Get to know the business, the issues they face on not just the legal side, but also from the operational and business sides. For skills, I have found that soft skills are just as important as building and developing technical legal skills. At the end of the day, businesses are about people, and serving businesses, entrepreneurs, and investors in this space is all about getting to know the people involved, the problems they’re trying to solve, and the challenges they face. More often than not, the counseling isn’t strictly about technical legal issues, but about finding a practical business solution and managing risk.

Kat: I can’t emphasize Thomas’ point about soft skills enough. As much as I tap into my analytical and technical skills in this role, knowing how to listen and effectively communicate are essential when working with as many different clients as we do. From CEOs to investors to HR directors to investment bankers, corporate lawyers get into the weeds with experts in many different areas of a company, and being able to work well with all personalities is a requisite to being successful in this role.

What is the most challenging aspect of practicing in this area?

Kat: A client’s corporate lawyer is often the first port of call when they need help. Clients frequently treat us as their outside general counsel, so we get calls covering a wide variety of legal areas, such as employment, tax, intellectual property, and compensation. We need to learn a little bit of everything to be able to efficiently answer questions and also know when we need to pull in colleagues with deeper expertise to help. Many of these issues are really important to a client—otherwise they wouldn’t be calling us! So our challenge is to provide helpful advice typically in short time frames, which can be a challenge when you have many clients. To address this, we balance the volume across teams to ensure that we can be responsive to our clients.

What are some typical tasks that a junior lawyer would perform in this practice area?

Kat: In the Emerging Companies and Venture Capital practice area, junior lawyers typically can dive right into client-facing work very early on. One of the first tasks a junior associate may do is work directly with a founder to incorporate a company—in this process, the junior lawyer will interview the founder to figure out the company’s capitalization, founders’ shares, who will serve in what corporate roles, etc., and then put together the paperwork. Junior lawyers will also join established client teams where they will assist with day-to-day corporate maintenance, like handling board approvals or preparing employment documentation, as well as working on significant transactions like financings. In a financing transaction, a junior associate will assist with due diligence review and preparation of ancillary documents, like disclosure schedules, certificates, consents, and opinions. As they do this, junior lawyers work alongside their supervising attorney to learn how to interact with client and investors’ counsel, understand the substantive issues in the transaction, and get a feel for deal cadence.

What kinds of experience can summer associates gain in this practice area at your firm?

Thomas: Our summer associates are staffed on projects and transactions just like any first-year or second-year associate might be—whether that’s working on a full incorporation of a company from soup to nuts, serving as the junior associate on a financing, helping to do diligence and draft closing documents, or being staffed on an M&A or capital markets transaction. The goal is for us to get to know them and help train them, while also for them to get to know us, the firm, and the practice—and the best way to do so is by giving them real work and treating them as we would any new lawyer.

In what ways has the coronavirus pandemic affected your practice? How have you adjusted to lawyering in the wake of COVID-19?

Thomas: The technology sector seems to have not just come out unscathed, but actually hypercharged in the pandemic as it seems the pandemic has accelerated adoption of many technologies and tech-enabled products and services that our clients provide. That’s led to an extremely busy and productive year in this practice, which seems to be the case not just for Fenwick but for many of our peer firms in the space. In terms of adjusting to lawyering in the pandemic, there really hasn’t been much change frankly speaking, other than trying to make sure we are keeping boundaries between work and personal life, which is always a challenge when you’re always on call. We’ve always had tremendous flexibility in working remotely as we’re often traveling or between meetings, so adjusting to working remotely during the pandemic has not been a challenge at all.

Kat Duncan, Partner, and Thomas Kang, Partner—Corporate

Kat Duncan, partner in Fenwick’s Seattle office, advises emerging and high-growth companies on a wide variety of issues, including corporate governance, financings, equity and employment issues, and licensing and commercial matters. She also represents late-stage private and public companies, as well as underwriters in public offerings, and counsels public companies on corporate governance, securities, and compliance issues. Some of Kat’s clients include 100 Thieves, Boxed, Jam City, Primary Kids, Madison Reed, and ZipRecruiter. Kat attended UCLA for her undergraduate degree and Loyola Law School.

Thomas Kang, partner in Fenwick’s Santa Monica and Mountain View offices, concentrates his practice on strategic and practical business counseling for technology and life sciences companies, as well as venture capital firms, in a wide variety of corporate transactions, including venture capital financings, debt financings, public offerings, mergers and acquisitions, and corporate reorganizations. Thomas’ client list includes DISQO, Figma, Ironclad, Modern Animal, Molekule, Remitly, Rock The Bells, and Unusual Ventures. Thomas attended UCSD for his undergraduate degree, Johns Hopkins for a Masters in International Economics and Korea Studies, and University of Washington Law School.

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