The Spot Runner Saga Continues: Founders Accused Of A "Pump And Dump" Scheme (Updated)

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TV advertising startup Spot Runner really is running on fumes. According to a lawsuit filed by one its irate investors, advertising giant WPP, Spot Runner has “expended all but approximately $20 million of its investor capital, while losing money at the rate of $35-$45 million a year.” The company has raised $100 million since 2006, and at one point employed more than 500 people before a string of layoffs cut that number down significantly.

The lawsuit states that the company had a loss of $45 million in fiscal 2008, on revenues of only $9 million. And in fiscal 2007, it lost $35 million on revenues of $5 million.

And here’s the zinger. While Spot Runner was losing all that money, its founders and two early investors (Index Ventures and Battery Ventures) sold shares worth $54 million. CEO and founder Nick Grouf took the lion’s share of those proceeds, netting $26.7 million in five transactions between Feb/March, 2006 and March, 2008. Battery and Index each sold $11.7 million worth of shares (nearly doubling their initial investments of $6 million each). While co-founder David Waxman walked away with only $3.6 million and investor Bob Pittman $365,000 worth of shares. The main complaint of the lawsuit states:

Rather than working to make Spot Runner a successful and profitable venture, they perpetuated a “pump-and dump” scheme in which they aggressively promoted the Company to new investors (often by promoting that WPP was an investor in and supporter of the Company) and then sold new investors large quantities of their own secondary shares at ever-increasing valuations.

WPP alleges that they did this “surreptitiously” and without disclosing it to other investors. As one of Spot Runner’s largest investors, WPP put a total of $11.8 million into the company. But it is hard to feel sorry for WPP. Basically, it argues in the suit that it should have been able to sell its shares to greater fools as well. It is suing because it wasn’t told about the secondary share sales and wasn’t invited to participate until the very last one, and even then only after it complained (WPP was allowed to sell $900,000 worth of stock at that time, while the defendants made off with $17.8 million).

What is not clear from the suit is how much of that $54 million in proceeds, if any, came from fundraising rounds for the company itself versus private secondary sales. Spot Runner won’t comment on any of these numbers other than to say “the complaint contains many inaccuracies.” Update: In a letter sent out to employees on Friday, Spot Runner argues that its founders did nothing wrong and in fact were actually doing investors a favor by selling them shares from their own private stash (see full text of email below):

When these sales occurred, there was overwhelming demand for Spot Runner stock and the company did not want to dilute existing shareholders by issuing new shares. Therefore, the founders (in 2006) and the board members and other preferred shareholders (in 2007 and early 2008) agreed to make room for important, new investors and respond to their desire to invest in Spot Runner by selling their own shares. In 2007 and 2008, WPP and other preferred shareholders were given notice that the sales were occurring, and they had the opportunity to participate in the sales. In fact, WPP signed various documents acknowledging this opportunity

With the IPO window closed for many startups, secondary private sales of stock are becoming more popular, especially for founders. That practice is fine if the company succeeds. Nobody is going to care if the founders took some money off the table along the way if everyone gets rich in the process. It is when things don’t go so well that investors start to complain and the lawsuits start flying.

Regardless of the merits of the case, it is not a good sign when one of the largest investors of a startup decides that the best shot it has at ever getting any of its money back is in court instead of in the market. WPP is seeking $13.2 million in damages. And it is not the only one who is angry. Both former and existing employees also feel shafted (read some of the 135 comments on my post about the last round of layoffs, which somehow became an unofficial forum for employees to vent). They never got a chance to sell any of their shares.

Full complaint embedded below, via PaidContent.

Update: Below is the e-mail Spot Runner sent out to employees on Friday, after word of the lawsuit broke:

Team,

As you may have heard, WPP, a minority shareholder (less than 3%) in Spot Runner since 2006, filed a lawsuit against the company and its board members primarily related to the sale of Spot Runner stock and Spot Runner’s communications with WPP. This situation is unfortunate, as we appreciate and value the relationships we have with all of our investors and we had hoped for a long and supportive relationship with WPP. We believe these claims are without merit and will vigorously defend against them, including taking all necessary legal action to protect Spot Runner’s reputation.

We feel strongly that WPP’s complaint contains many baseless accusations and want to give you a broader perspective on the matter. This lawsuit is unrelated to our products and services – it is centered on legal agreements entered into with WPP, a sophisticated investor, regarding the way that shareholder stock sales were handled. WPP alleges that Spot Runner’s board members failed to disclose to WPP the stock sales by shareholders, allegedly in violation of the board’s obligations to stockholders, among other things.

We are confident that Spot Runner complied with all of its obligations under the various shareholder agreements. When these sales occurred, there was overwhelming demand for Spot Runner stock and the company did not want to dilute existing shareholders by issuing new shares. Therefore, the founders (in 2006) and the board members and other preferred shareholders (in 2007 and early 2008) agreed to make room for important, new investors and respond to their desire to invest in Spot Runner by selling their own shares. In 2007 and 2008, WPP and other preferred shareholders were given notice that the sales were occurring, and they had the opportunity to participate in the sales. In fact, WPP signed various documents acknowledging this opportunity.

Spot Runner and all of its employees conduct business with the utmost integrity. Our team, technologies, and products and services are core assets of which we can all be proud. It is because of your hard work that we have come this far. To that end, we continue to drive hard toward successfully launching Project Malibu and realizing its full potential. You also should know that our board members remain majority shareholders in Spot Runner – a concrete sign of their commitment to and confidence in the business.

Our outside counsel will work with the board and management team to develop a formal reply, which ultimately will be filed with the court. These legal proceedings should not affect our day-to-day operations.

We are grateful that we can count on you to remain focused on serving our clients and partners to the best of your abilities.

Thank you again for all that you do for Spot Runner.

WPP Sues Spot Runner http://d.scribd.com/ScribdViewer.swf?document_id=14349540&access_key=key-2h6fzynp3zic16e2ocnl&page=1&version=1&viewMode=

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