Indiana Privacy LitigationYour friendly neighborhood technology legal counsel here to discuss with you the hidden dangers lurking in your unassuming (and unread) terms of service agreements.  Janet Croswell, one of our fabulous tech lawyers, posted back on February 10, 2010 about the pitfalls that businesses face related to the clickwrap agreement (here's a link for those playing along at home  blog.alerdingcastor.com/blog/alerding-castor).  Now for those of you scratching your head and wondering what a "clickwrap agreement is", the answer is simply those pesky agreements that we all have to agree to in order to do anything on-line and that none of us actually read.  I'm fascinated by this stuff and I'll probably only read one in twenty that I ever click past.  They are the superfluous hurdle that we fly past in order to enjoy our Internet-y goodness.  But, as Janet so wonderfully pointed out, these hindrances are actually contracts to which we are binding ourselves, or worse, our companies.  "What" you exclaimed under your breath, "You mean this is binding on me?"  And I'm forced to tell you, "yes".  Which leads to the inevitable "so what" question. 

The "so what" in this scenario is that you are likely locking yourself into a venue-selection provision.  I know the phrase sounds like you are making the decision of whether your play Deer Creek or Red Rock during the next summer tour cycle, but actually you are significantly limiting your options from a litigation standpoint.  Venue is the place where a lawsuit can be brought.  Obviously, you would like to bring a lawsuit near where you are located and where there is law that favors your position, but if you agree in contract that it will be brought in Poe-Dunk, North Dakota, well then friend, that's where you are headed. 

Recently, several courts have concluded that venue selection provisions contained within a clickwrap agreement are enforceable.  The most recent cases involve the venue-selection provision in the Google AdWords contract.  In TradeComet.com v. Google, a New York District Court found that the language from Google that

"THE AGREEMENT MUST BE CONSTRUED AS IF BOTH PARTIES
JOINTLY WROTE IT AND GOVERNED BY CALIFORNIA LAW EXCEPT
FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE GOOGLE
PROGRAM(S) SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL
OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA,
AND GOOGLE AND CUSTOMER CONSENT TO PERSONAL
JURISDICTION IN THOSE COURTS."

required the dismissal of an action brought in New York court.  The District Court went through a very succinct analysis of the standards for enforcement of a venue-selection provision and then made its determination of both (a) the enforceability of this agreement and (b) the reasonableness of enforcement of this provision in the instant case. 

Another court reached the same decision in Flowbee International, Inc. v. Google, again looking at this venue-selection provision in the Google clickwrap agreement.  In that case, the District Court ordered transfer rather than simply dismissing the action, but it nevertheless did transfer the case to the Northern District of California. 

These two cases illustrate the fact that when you click on that little box, you might be shoehorning yourself into a court that you don't want.  To date, most courts have applied the same analysis to as these courts did to determine that you, my friend, are stuck.  In fact, the District Court for Southern Indiana reached this decision in Appliance Zone, LLC v. Nextag, previously cited by Ms. Croswell.  

Now if you're sitting there wondering, "Ok, Mr. Bigshot at the information technology law firm,  what is a poor web-browser and member of the 21st century to do?"  My only answer is:  tune back in to Part 2. 

US Private EquityThere is a good article on the Mercury News Blog today on How dot-com start-ups have changed 10 years later.  The article addresses the maturity of both technology companies and US private equity investors over the last decade.  It is an interesting read.

There has been a lot of activity in angel investor groups and venture capital investments in Indiana technology companies over the last few months.  2010 has definitely started with a bang at Alerding Castor Hewitt where we have helped five companies secure funding this calendar year.  I am traveling with two technology clients in a couple of weeks to meet with investors in Southern California. 

Still, the same rules apply when seeking funding.  An early stage company looking for funding must prove:

1.    Management Team (including expertise in field and proven financial and leadership ability)
2.    Market Opportunity (including the need, ability to meet the need and scale)
3.    Investment Opportunity (is the expected return worth the risk of investment)


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.


Indiana Probate Litigation, Indiana Entrepreneurial LawCongratulations are in order to Brian Hewitt, the newest parter of Alerding Castor Hewitt, LLP, who was recognized this week as one of Indiana's 2010 top 50 Super Lawyers.

Brian concentrates his practice on estate, trust, and guardianship planning, administration, and litigation; and mediation and business law.

He is a Certified Estate Planning and Administration Specialist, a Fellow of the American College of Trust and Estate Counsel, and a member of the Probate Litigation Committee of the American College of Trust and Estate Counsel.  

Brian has spoken widely at continuing education seminars on estate planning, business succession, litigation, and mediation.


Congrats Brian! 

We are proud that you have chosen to join us as a named partner of Alerding Castor Hewitt, LLP, an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.



Business LawI have taken a few weeks off of blogging.  Honestly, I felt like I needed the break, but I am excited about getting back on the saddle and writing again.

Since it has been a few weeks, let me give a brief update on what we have been up to.  Alerding Castor Hewitt has had an exciting beginning to 2010.  On January 1, Bill Boncosky joined us.  Bill is a business attorney / technology and SaaS law attorney working with privately held companies, primarily in technology industries.  Bill has spent the last seven years as General Counsel at ExactTarget.  We all have much to learn from him and are thrilled to have him as part of the team.  The IBJ put out a nice article in January on our firm's focus on entrepreneur law and Bill's joining us in this field.

This week Scott Kreider joined our business litigation group.  Scott adds to a team headed up by Mike Alerding that handles a difficult and necessary discipline for any full service business law firm – handling business disputes.  It is great to have him aboard.  Also, Mike made the IBJ's 40 under 40 the other week.  Good stuff.

Over the last few weeks our firm has helped four clients through capital funding processes - three from angel investors or private equity firms and one from a venture capital firm.  It is always encouraging to see business clients grow, and we count it as an honor to be part of their process.

We have also been involved with many businesses and business owners through customer deals and strategic business growth matters.  We will write more on some of those matters in future posts.  

I was a guest lecturer the other week at Purdue’s entrepreneurship capstone course.  Man I felt old, but I was very encouraged by the enthusiasm, drive and smarts from this class.  

So there is the fire hose version of the last few weeks.  2010 is off to a strong start for ACH.  I am looking forward to what is coming down the pike.


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.

FOR IMMEDIATE RELEASE
February 4, 2010
Contact: Lainey Scheetz
317.403.9012
lscheetz@alerdingcastor.com

ALERDING CASTOR HEWITT LLP PARTNER NAMED TO FORTY UNDER 40

Indianapolis, IN – Alerding Castor Hewitt LLP is pleased to announce that Michael Alerding, a partner at the firm, has been named to the 2010 Indianapolis Business Journal’s Forty Under 40 list.  The list recognizes local business and professional leaders who have achieved success and excelled in their field before the age of 40. Those honored have demonstrated leadership, initiative and dedication in pursuing their careers, and are likely to continue to achieve in the future. 

David Castor, partner at the firm states, "Michael has served the professional and civic community of Indianapolis for many years.  I am proud to be a partner of his as he brings with him a strong commitment to our vision while balancing that with a solid family life.  Michael represents what we should all strive for - personally and professionally."

Prior to forming Alerding Castor Hewitt, LLP, Alerding was a partner at Sommer Barnard PC and Bingham McHale LLP. 

A 1989 Cathedral High School graduate, Alerding received a bachelor’s degree in journalism from Indiana University before pursuing his law degree at IUPUI.  He was admitted to the state bar in 1997, the same year he graduated with honors. 

Alerding is a husband and a father of three young daughters.  “I don’t need to make a whole lot of money nor do I want to necessarily,” he said.  “The desire to feed my family is what gets me out of bed in the morning, and everything I do is for the sake and purpose of my family.”

Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.

 


Entreprenurial Law - Accelorator ProgramClosing in on the end of 2009 I have to say that I am quite pleased with the commitment Indiana showed this year to be a State that supports and promotes innovation, entreprenuership and business growth.

This week I had breakfast with Larry O'Connor, Executive Director of Butler University's Business Accelerator.  Larry is a former CEO of Bank One Indiana.  Following his "retirement", Larry became CEO of The IndianapolisMuseumm of Art, and recently took the position to lead theAcceleratorr program.

On the program's website, Larry describes theAcceleratorr as follows:

Operationally, the Accelerator is a consulting business designed to serve middle market companies in Central Indiana. Teams of professional consultants, faculty and students work directly with these companies - helping them to grow and simultaneously providing a living laboratory in which undergraduate and MBA students learn and experience real business problems and situations.

While Butler is continuing its work with mid-market companies, 2009 also showed growth of incubator programs and the birth of new angel investment groups in Indiana.  As an entrepreneurial law / private equity attorney, the health of these groups means a lot to me in terms of support and growth of my clients.

2009 was a strange year for businesses.  Private capital was hard to come by due to economic constraints.  Lending was tight.  The corporateenvironmentt seemed to be mired by corporate fraud (Madoff, Durham).  Despite all of this, Indianapolis proved to be a great place for businesses to launch and grow. 


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.


Indiana Technology Counsel, SaaS Legal ConsultingEmployers invest so much time and effort into (a) finding and hiring the right candidates for the team, and (b) developing those individuals to work at their most efficient levels for the company. 

Let's face it, it can take years to get a company up and running effectively, and certain key individuals play a huge role in making that happen. 

You don't want to lose them.


While I firmly believe that everyone is replaceable, some employees are just harder to replace than others because they add so much value.

Give them an incentive. 
One option is to tie their salary to the success of the company.

Instead of traditional stock options (which could make it difficult down the road should the employee leave the company for any reason) business owners may want to consider offering certain individuals profit interests.

Not only would it build loyalty and increase an employee's desire to see the company succeed, but the company owners would retain all of the equity interest.


A bit simpler than stock options, profit interests are typically tied to employment and end upon the employees departure.   This eliminates employers dealing with minority shareholders and the host of issues that may arise from them.

Alerding Castor Hewitt, LLP is an information technology law firm that has helped dozens of start-ups with their business and legal needs, including documentation for profit interest agreements.




The other day I wrote a post on my reasons not to use the term "affiliates" in licensing agreement negotiations.  See post here.  My general point is that the term has no common meaning in the law and may create ambiguity in the contact.

I addressed several different definitions of the term in laws, but the term is not only defined differently in law, it is also used differently in business.

For accounting companies, for instance, the Interstate Commerce Commission defines the term as companies controlled by the accounting company alone or with others under a joint agreement.  So, “affiliates” falls outside of typical entity ownership structures and to companies with controlling interests through contractual relationships.

In the banking industry the term is commonly used to refer to an FIB which processes credit card data for other financial institutions or financial institutions that issue MasterCard or Visa cards.  The term here has nothing to do with ownership structures.

In television and radio industries, affiliates are companies not necessarily under common ownership which have contracted with a network to broadcast its programs.

In the Internet world a marketing affiliate refers to a company who links to another company via a weblink which then allows the hosting company to obtain a commission on sales made as a result of user’s clicking through that link.

"Affiliate" is a term that is used in contracts when the parties want to refer to an entity relationship but do not want to take the time (or don't know how) to define it.  Again, it is best to avoid this term, but if you must use it, make sure to define it clearly in the contract. 



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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.



New technology businesses usually face two hurdles to get their product to market.  The first is proof of concept.  The second is proof of scale. 

Both are intended to solve the “Ability” stage of the business plan process and move the business into the "Meeting" stage:

Recognition of Market -> Recognition of Market Opportunity -> Ability to Meet Market Opportunity -> Meeting Market Opportunity at Profit

Proof of concept is simply the proof that the business can develop a working prototype that solves the market opportunity issue.  For a software licensing company this will be development of a bare bones software program, usually without user interface design or additional back end functionality.  It solves the most basic questions of whether the contemplated design will meet intended functionality. 

Proof of scale is the initial to-market phase that proves the business can scale the technology (or good or service) to satisfy the market opportunity at a profit.  Some of the issues to address at this stage include:
  • Adequate capital
  • Quantifiable customer demand
  • Number of sales force required
  • Adequate supply chain (in terms of cost, quality and time)

After proof of scale is satisfied, a business is usually in a more stable mode with its product (or service) satisfying the market opportunity at a profit.

As an entrepreneurial law / SaaS law attorney, I have helped several clients work through these and many other issues in the “proofs” stages.  I find that few business fail to address the proof of concept stage well, but many ignore issues in proof of scale.  One of the key issues to address early is quantifiable customer demand for YOUR product as many of the other issues spring from this one.



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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.


What are your metrics for business success?  I attended a non-profit board meeting this past week where the directors were working through this question  - "How do we measure success?" 

A common metric that was discussed was # of volunteers in the organization in ___ years.  Although this metric does measure growth, it does not measure the quality of growth.  What if the volunteers are under committed, under trained or just plain lousy at their job?  You may meet your metric but find that your organization is under serving the community, or worse, frowned upon by the community it is trying to serve.

Similar metrics are common in business plans where I often see # of customers as a metric for growth.  I also saw this problem with the prior administration of Indiana's 21st Century Fund where creation of jobs was the key metric for grant opportunities.  The problem there is that there are good jobs and bad jobs - purely measuring # of jobs does not distinguish between the two.  I could create tons of hourly pay jobs today if I wanted, but those jobs would be low wage and temporary.  Not the type that would ultimately benefit the State.  In short, the metric is not a good measure of success.

The difficulty with metrics is that they can come in just about any form you can imagine.  They are simply a way to measure growth.  The key is to tie them in with the ultimate goals of your organization.  Most companies do not want growth at the cost of profitability.  Personally, I would rather run a small shop with higher profit than a large shop with smaller or no profit.  

So, here are a few poor and good metrics for successful business growth:

Poor metrics:
# of employees
# of customers
# of square feet of office space

Good metrics:
Net Profit at $_____, based on Revenue of _____.
% of customers at ___ % margin
___% profitability margin per employee


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.


As an admitted technophile, I can't help but look into all the newest gizmos and gadgets.  Plus, working at an information technology law firm, I can even bill it sometimes.  Thus, I've recently begun a fascination with e-books.  Jason Wilson has  done a very interesting set of blogs looking at the use of e-books (or lack of use) for lawyers (www.jasnwilsn.com/).  Jason's viewpoint is as a counterpoint to a recent set of blogs by Professor Eugene Volokh (volokh.com/2009/10/02/the-future-of-books-related-to-the-law/).  I find this debate interesting for lawyers in general, but litigators specifically.


While I appreciate Jason's point of the importance of cloud computing and web based interfaces for lawyers, I have to admit that I personally think that e-readers are likely to have increasing presence in courtrooms around the country.  I am genuinely intrigued by the thought of turning to my e-reader to "leaf" through a treatise on privacy litigation or ASP law that I've downloaded while sitting in a courtroom.  This is particularly true when the courtroom that I'm sitting in is located in small town Indiana (or any other small town) that is still working on integrated computer systems and look at you askew when you ask about WI-fi.  Web based interfaces are extremely important to the 21st century attorney, but there are still limitations.  And if technology can allow me to carry treatises and law books that I might need before a court while still using my super sleek briefcase, I'm all for it.

There are several business blogs that I follow.  Most of these are written by SaaS law / Internet law clients of mine or other Indiana businesses in technology industries.  Lately I have been falling behind on them.  This morning I am trying to catch up. 

I came across a very good, brief video on Kristian Andersen + Associates' blog.  

The video is from the Bigger Ideas/Smaller Indiana conference this past summer.  In the video Kristian Andersen shares his feelings on central Indiana's business environment and our tendency to minimize our solid business culture by holding ourselves out as having two strengths to attract businesses and entrepreneurial ventures to Indiana:

#1 - Indiana has low housing costs.
#2 - Indiana is a great place to raise a family.

Don't get me wrong, these are great attributes of our region, but I agree with KA that they do not create cultural excitement or substantive value for businesses.  If you look at top tier business environments, they certainly do not market themselves in this way.  They sell value.  They sell cultural significance.  They sell networks and incentives.

Kristian, very nicely done!


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.








Business LawThe following post by Pat Horgan of Palidan Associates was printed on the E-Sourcing Forum a couple of weeks ago.  Even though the post applies particularly to sourcing professionals, the concepts are excellent for most contract negotiations.

NEGOTIATING TIPS

Contract Document Control

In contract development, the party that controls the physical production of the contract document and the wording changes during negotiations generally has a distinct advantage.  This is particularly true in long or complex contracts.

Subtle or undetected changes can possibly be introduced into the document by the “controller”, but without the other party’s knowledge.  Sometimes seemingly innocuous, but subsequently important terms and conditions on someone else’s paper can escape notice.  To the extent that one party’s language is used, subsequent legal interpretation of precedent, meaning, or industry practice may favor that party.

The party that controls the contract document has a leg up in the negotiations.

Controlling Terms and Condition

Similarly, both the Buyer and the Seller have to be careful that they are not inadvertently accepting unknown or non-negotiated terms and conditions that may exist on the other party’s standard paper, contract documents, invoices, or purchase orders. Often terms and conditions on a Seller’s standard invoice are different than those on the Buyer’s standard purchase order, and both may differ from specific contract language.  Often, simply paying an invoice means the buyer has “accepted” the Seller’s terms. In a more recent complication, agreements may refer to Terms and Conditions that reside on the Seller’s website.  This is sometimes difficult to manage because the website can be readily changed, enabling the Seller to change prices and terms at their discretion.

Often the Buyer firm, or the larger firm, or the firm that has better legal representation wins this negotiating element without the other party even realizing the issues involved.

Some things Buyer’s can do:

Buyer’s can generally insist that contracts be written on their paper, that they control and modify the physical document during negotiations, and that their terms and conditions prevail. Include terms and conditions early in the RFX process to identify and address these issues at the point of greatest leverage.  Vendor invoices should always be reviewed, matched against purchase orders and/or contracts, and checked for inappropriate terms or conditions.  Suspect invoices can be referred to properly trained Accounts Payable personnel or legal counsel for resolution.



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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.


SaaS Law / Business LawAccording to a recent Gartner research report, worldwide SaaS revenues are expected to grow 18 percent in 2009 to reach $7.5 billion.  The report further stated an expectation for SaaS industries through 2013 when worldwide revenues are expected to top $14 billion for enterprise application markets.

Gartner listed the top SaaS market segments for 2009 as follows:

1. Content, Communications and Collaboration (CCC) - $2.6 billion
2. Customer Relationship Management (CRM) - $2.3 billion
3. Enterprise Resource Planning (ERP) - $1.2 billion
4. Supply Chain Management (SCM) - $826 million
5. Office Suites - $68 million
6. Digital Content Creation (DCC) - $62 million
7. Other SaaS offerings - $472 million

My business law / Internet law practice focuses on representing technology businesses as general counsel through their business lifecycle.  A number of my clients that are seeing rapid growth are in SaaS markets, primarily in CCC, CRM, and SCM markets.  This report is encouraging news for SaaS businesses in Indianapolis.


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.

Business Law at 30,000 feetFrom time to time I use the term “From a 10,000 foot view…”.  This is corporate buzz speak for taking a broad look at something without getting into the details.  From a business vision and strategy perspective, it is common to start at a high and broad perspective and then work down to the details (i.e., "into the weeds").

Many business professors, and even our President, encourage business executives to stop using such buzz phrases as they can serve as a crutch for intelligent decision making and implementation. 

"These are all words and phrases that dumb people use to sound smart. It's ludicrous. I mean, if you are in a meeting and you say ‘From a 30,000 foot view, this looks like a great idea’, aren't you just saying that you are too stupid to look at the details of the proposal to figure out if it will actually work? Your employees lose all respect for you.  That's why when I take my chair in the Oval Office, one of my first orders of business will be to outlaw these inane words and phrases."
               
- President Obama


I understand the President's point, but personally I still like this phrase as long as it is not overused and used properly. 

So I use “10,000 feet”.  Obama refers to 30,000 feet.  In the last week I heard one business professional say “30,000 feet” and another business owner say “50,000 feet”.

So, what is the proper “foot view” for high level, summary reviews of situations?

The good news for anyone using the phrase is that it is mere corporate buzz.  So, there is a plenty of leeway on proper phrase usage.  Not the a Google search is the proper way to determine correct phrase usage, but for sake of time I ran a Google search.  It shows various results for each phrase height, with each search showing articles by businesses professionals, organizations, politicians, and academics using each height.  That really is not an answer, but it at least shows that I am not alone in my club.  I am sticking with 10,000 feet!


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.


Emerging Indiana technology companies should consider grant opportunities as an alternative to raising private equity.  The benefits are obvious as you are not giving up a stake in the business in order to secure strategic capital. 

A client of mine this past week engaged my technology law firm to assist in an SBIR grant opportunity.  Other grant opportunities include NIH grants and 21st Century Fund grants.

The 21st Century Fund is a "must" to consider if you are an Indiana technology business.  The Fund is described on its website:

The Indiana 21st Century Research and Technology Fund was created in 1999 by the General Assembly to stimulate the process of diversifying the State's economy by developing and commercializing advanced technologies in Indiana. The Fund is now an integral element of the Indiana Economic Development Corporation's Small Business and Entrepreneurship Division. 21st Century.






I had the honor of speaking at the Masters of Business Online conference this last week.  The conference was organized by Jim Brown of EverEffect.  Jim and his team did a great job with the event.  Last count I heard was approximately 250 in attendance.

Here are a few blog posts that described the event:My hour presentation was entitled "The Legal Landscape of Corporate Blogging".  I addressed legal issues and opportunities for risk mitigation for companies utilizing social media in their marketing campaigns.  As one of the only “non-marketer” speakers at the event I had a great time discussing Internet law and social media law with many marketing professionals.


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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.


SaaS Legal ConsultingThis is the second part of a four part series from the SpendMatters blog on the rise of Iasta as a global leader in eSourcing markets.  The article is by Jason Busch, a Founder and Managing Director of Azul Partners, a boutique advisory firm. He is also Editor of the highly trafficked sourcing, trade and supply chain blog www.spendmatters.com. Jason is regarded as one of the leading technology pundits and thought leaders in the trade, procurement and operations worlds.


I recently just completed Ronald Cohen's book, The Second Bounce of the Ball (hat-tip: Greg Mark). The book is a great study in what it takes to be a successful entrepreneur. Perhaps most important in this regard is being able to read what Cohen refers to as the "the second bounce of the ball". After all, when we enter a market for the first time, it's easy to anticipate initial demand, interest, expectations, etc. But after the ball bounces a second time -- as it always does -- it's not always as clear which direction things will go in. Iasta is one of those companies that successfully read not only the second bounce of the ball, but the third as well. After migrating successfully from being a low-cost full service auction provider into a SaaS vendor with a strong e-sourcing mousetrap, they've once again listened to and read the market, moving in a new but logical direction.

Iasta's latest foray is into the world of what I'll term value-added sourcing and procurement services. Relatively speaking they're not breaking any new ground here. But just as they did in the past, they're copying and adapting an existing business model and delighting customers with both their price points and level of service. And they're doing so successfully, down to working with customers on broad- scale procurement transformations. Yes, you read that correctly. Iasta, that niche Indianapolis sourcing vendor, is competing against the Accentures and AT Kearneys of the world in the area of procurement transformation. And they're doing so successfully.

One of the secrets of their model is maintaining a relatively small full-time consulting team. In fact, nearly all of their team members are contractors with excellent reputations from past roles as consultants at major firms. Iasta is giving them far more autonomy and marking up their services significantly less than what other firms tend to do (e.g., I spoke with one of their procurement transformation leads with significant Big 5 experience who had also worked as a contractor for Denali and Accenture doing similar engagements). With Iasta, he was able to take home a significantly larger percentage of the overall client billings for his time and was also able to save the client material amounts over what bigger name firms would have charged (most likely to put in place more junior resources).

But what class of new services is Iasta offering specifically? For one, they're looking to define and bring to market offerings that, in their words, can help "new customers who aren't in a position to successfully use our software for 12 months until we can get them up to speed". If this requires dropping in more senior team members to drive initiatives in almost an interim management capacity, they'll do it. They'll also do more traditional opportunity and organizational assessments and follow through with customized programs designed to bring companies up to the next level of maturity (interestingly on this note, a number of other services providers in the market use Iasta as their sourcing platform and I suspect they might begin to see Iasta as potentially competitive -- the same problem that Ariba has had with its channel partners in the sourcing area).

In addition to procurement transformation offerings, Iasta is embracing the term "cloud sourcing" to describe a range of other services they bring to bear. These include what they're calling strategic initiatives in the form of energy sourcing and management, green supply chain consulting, MRO transformation and procurement outsourcing. But they're also productizing other cost reduction services based around what they're terming Zero Budget impact programs. These are, in Iasta's words, "8 indirect categories that are difficult to source and are not conducive to auctions".

Zero Budget categories include pharmacy benefits sourcing (delivered via a coalition / GPO model) which delivers, on average, 8-10% savings). They also include non-medical benefits and telecom (both delivered via sourcing events with 7-22% and 15-30% average savings respectively). Other categories that fall under this umbrella include software contracting, MRO/safety supplies, print, fuel management and relocation services.

Iasta has not abandoned more discrete service programs in the least, however. They continue to deliver what they term "tactical sourcing" programs in the form of spend analysis services, sourcing services, optimization services and user training. They're also offering spend analysis as service (including data classification, report and spend assessment surveys), fully managed source services, and staff augmentation around category-specific opportunities. To deliver all of these capabilities, Iasta is leveraging a network of "some 100 consultants" many of whom bring either specific category experience (e.g., print) or other areas of expertise.

Stay tuned for additional analysis of Iasta -- including software enhancements and pricing trends / observations / levels -- as this series continues.


Iasta is a software and global service provider of cost effective Supply Management solutions. As a leader in On Demand / SaaS eSourcing software and services, they have helped companies of all sizes and locations make better purchasing decisions. Iasta provides sourcing software for companies who want to analyze, source and optimize business decisions. Companies use Iasta’s product platforms to automate their strategic sourcing processes and provide buyers with the ability to collect and analyze a wide range of supplier or corporate information. Led by a team of talented individuals with experience in building viable companies, the leadership team's expertise and enthusiasm drive Iasta's superior product and service performance.


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See Also: 
SaaS Law - Iasta Morphs And Grows Part I



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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.

SaaS Law - Iasta LogoThere is a great four part series on the SpendMatters blog which walks through one industry expert's story of the rise of Iasta as a global leader in eSourcing markets.  This was fun for me to read.  I am going on my ninth year of representing Iasta as it's Business law / SaaS law counsel and have loved seeing them grow from a modest Midwest auction software provider to a global SaaS eScouring leader.  It is definitely worth a re-post on The Business & Culture Blog.

The article is by Jason Busch, a Founder and Managing Director of Azul Partners, a boutique advisory firm. He is also Editor of the highly trafficked sourcing, trade and supply chain blog www.spendmatters.com. Jason is regarded as one of the leading technology pundits and thought leaders in the trade, procurement and operations worlds.

Iasta is a software and global service provider of cost effective Supply Management solutions. As a leader in On Demand / SaaS eSourcing software and services, they have helped companies of all sizes and locations make better purchasing decisions. Iasta provides sourcing software for companies who want to analyze, source and optimize business decisions. Companies use Iasta’s product platforms to automate their strategic sourcing processes and provide buyers with the ability to collect and analyze a wide range of supplier or corporate information. Led by a team of talented individuals with experience in building viable companies, the leadership team's expertise and enthusiasm drive Iasta's superior product and service performance.


PART I

While I'm not an old man just yet -- even though some might say that I have my curmudgeonly tendencies, not to mention liking to get to bed hours before Letterman comes on -- I have been around the provider side of the Spend Management world long enough to see dozens of vendors move from writing their initial business plans into their formative years and later into additional stages of maturation. Such is the case with what used to be a small provider I always enjoyed talking to and catching up with, Iasta. I've known the founders of Iasta since before they knew me. When I was at FreeMarkets, Iasta initially set out to copy our full-service sourcing model (and they did succeed in undercutting us on price and winning deals from time to time, as various salespeople reminded me when asking: "Who the heck are these guys from Indianapolis.")

Back in those years Iasta's three founders were heck-bent -- that's Bible Belt / Indy speak for hell-bent -- on creating a viable business model. And while they weren't sourcing guys, they knew a good business model when they saw it. As I got to know Iasta's three founders and became friends with David Bush at the time, it became clear that the Iasta business model was evolving from one of full-service capabilities into a self-service sourcing platform (along the lines of Procuri, Bay Builder and others). Early on in this migration, Iasta competed primarily on price, but as its features and capabilities grew, they started to win deals on more than just their willingness to undercut FreeMarkets, Ariba, Emptoris, Procuri and others. In fact today, they're often among the pricier options in certain deals. But they continue to win more than their fair share of deals in the areas in which they compete (primarily e-sourcing, spend analysis and optimization).

Last week, I had the chance to catch up with Iasta at their reSource event roadshow, as it swung through Chicago. In a series of posts this week and next, I'll dig into how Iasta continues to morph as it grows at one of the fastest rates in the overall market. In this first post today, I'll tackle some of the basics regarding their history and growth, sticking to the facts and figures. But perhaps most important, as a first question to tackle, is how did three guys from Indy create a thriving business in the Spend Management world without outside investment and with little or no initial knowledge of how the sector worked?

They listened to customers, that's how. And this remains a strategy they continue to employ to this day. In fact, starting out in 2000 through 2002, they followed their customer's requests to focus on fully managed auctions. Then in 2003-2006, they rode the SaaS e-sourcing wave. And more recently, they've grown through both customer and solution diversification, in addition to pushing a core sourcing platform that continues to garner accolades from users.

Today, Iasta has approximately 100 customers using their applications. Most of these are typically Global 1000 companies. They also have 50 services clients today (with a strong overlap between the two areas). These numbers not only represent what's been a strong level of customer acquisition in recent years, but also strong revenue growth overall (which is a signal that e-sourcing and related markets aren't seeing the type of pricing pressure that many initially hypothesized they would).

In fact, Iasta has realized a trailing three-year growth rate of 256%. This includes 77% growth in 2008. In Q2 alone, they saw 121% growth between the 2008 and 2009. And they've signed 32 new clients year to date. Moreover, 27% of the recent quarterly growth has come from software license sales (which represent what over 90% of the time amounts to a perpetual annuity).

Compare these numbers with Iasta's competitors and you'll quickly realize this is a company that is on the move. Moreover, the growth is all the more impressive if you consider they've done it without any outside cash infusions. Iasta remains 100% owned by the management team. They've also not yet hit a commercial inflection point, needing to bring in a truly heavy hitter in the sales area. So in other words, not only is all of this growth truly organic and real, it's evolved without the typical investments in sales, marketing and other areas that often require millions of dollars in a Series B financing round.

Stay tuned for the rest of this series looking at Iasta's growth. Next-up: a quick-hit investigation of Iasta's platform and related sourcing services.
 



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Alerding Castor Hewitt, LLP is an Indianapolis law firm focusing on business law, information technology law (including SaaS law and legal technology consulting), private equity consulting, and business and Internet litigation.


Last Tuesday, I attended the TechPoint Innovation Summit.  In addition to meeting some great entrepreneurs and technology business people, I was fortunate enough to hear Clayton Christensen speak about his disruptive innovation economic theory.  I have to admit that this was my first exposure to this particular theory, but it highly intrigued me and made me think about its applicability to the practice of law in general and to business law firms specifically.

In a nutshell, Christensen's theory describes the impact of new technologies on a given market.  Essentially, in any given market, there is first a push for centralization. This centralization actually results in a higher cost to the consumer as the centralized firms compete with each other for top billing.  Following that centralization, new technologies emerge that allow for businesses to do things cheaper and simpler.  These new technologies lead to innovations in the market that eventually force change or failure of the centralized companies.  I know that I've put together the 100,000 foot view of the theory, but you get the gist.

Applying this model to business law firms, you see the implementation of centralized firms, in the advent of the big law firm.  These big firms then compete with each other and ultimately drive up the cost to the end-user.  Following Christensen's theory, now is the time for disruptive innovators in the legal field.  This reality is evident in the hard impact that big firm's suffered in the recent economic times.  

In my humble opinion, this theory is why firms like Alerding Castor Hewitt are competing well in these markets and will not only continue to be effective, but will thrive.  Through the willingness to embrace technology and focus on cost-effective, simpler representation, firms like ACH can focus on the entrepreneurs that need this representation, but aren't willing to endure the big firm costs. 

Why is this important?  Because as the world continues to change and technology law and innovation comes to the forefront, the innovators will be leading the pack and will want representation that understands both their needs and their spirits.  While this new business reality continues to develop, those of us here at ACH will continue being disruptive innovators (which incidentally would also be a great name for a band).