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  • Shelly Albaum

Who Is Mark Friedman, ChromaDex's New General Counsel?


The short answer, of course, is I don't know.

But I did some research, and I have a few thoughts about how one should evaluate a General Counsel.

I know a little bit about corporate law departments because my first job as an attorney was as corporate counsel (at ARCO's cross-town rival, Texaco), so I know how that job is supposed to go.

Some of the retail investors on the boards seem to think that Herballife, Mr. Friedman's last gig, is not a reputable company, and that that ought to reflect poorly on the Herbalife's GC.

That view probably does not accurately reflect the law department's role in the corporation.

In evaluating the General Counsel, we're not going to be looking at a corporation's Marketing, Sales, Product Development, or Strategy, but simply how the company handles risk generally, how they handle legal conflict in particular, and what kinds of problems they have experience solving.

Surprisingly, the law department's job is not to tell the business units that they have to obey the law, but to help them comply with the law and minimize risk. But if the corporation wants to engage in legally risky behavior, the GC doesn't have the final say. In fact, when something goes wrong for a corporation, it is usually impossible from the outside to know whether a particular GC was fighting like mad to minimize the damage or was simply cavalier about the risks.

In any case, I will argue that the most important part of Mr. Friedman's career, for ChromaDex's purposes, was probably Pinkberry, not HerbalLife, but let's start at the beginning.

Mr. Friedman's Vita

Full Disclosure: I went to UCLA Law School, and I nurture within me the glowing embers of contempt for cross-town rival USC and its progeny. I will put that aside now, but only for the brief time during which I am writing this, and I reserve all anti-USC arguments.

So according to LinkedIn, Mr. Friedman graduated from law school in 1987 (three months before I started law school), and passed the Bar on his first try (typical, but no small feat in California).

ARCO

By 1994, he had transitioned from law firm practice to become in-house counsel at ARCO, subsequently acquired by BP, and worked there nine years. While at ARCO/BP, he seems to have dabbled in a lot of different things. For ChromaDex's purposes, nothing relevant, other than being immersed in the general standards by which in-house lawyers advise a business.

American Golf

In 2003, he left the petroleum industry for his first General Counsel gig, at American Golf Corporation, which aspires "To be the world leader in golf course management." This might reasonably seen as a step down, but if you want to be a GC, you've gotta start somewhere. I will ALSO briefly put aside my contempt for golf, both as an institution and a sport.

For our purposes, the relevant question is what kind of mischief AGC got itself into between 2003 and 2008. The answer is, "Not much," which is a good answer.

But, on the other hand, the kinds of issues that would come up -- heavy on real estate and facilities, I'd guess -- would not be too meaningful for ChromaDex. (Although I would concede that American Golf Corporation v. Sugarland Country Club, 2009 WL 5149872, which was first filed on Mr. Friedman's watch, involves a country club that allegedly walked away from its contractual obligations to AGC, which has a ring of familiarity.)

But in 2008, Mr. Friedman left AGC to spend five years as GC of Pinkberry, and that's where the story gets interesting.

Pinkberry

Pinkberry opened its first frozen-yogurt store in 2005.

In 2007, it raised $27.5M to expand the concept nationwide, and was immediately embroiled in litigation, when it was (according to The Street) sued "for apparently making misleading claims about the healthfulness of the product." Was it really yogurt, or just ice cream?

In 2008, Mark Friedman joined as GC, and the class action lawsuit was settled.

In 2009, Pinkberry raised another $9M to expand internationally.

By 2011, according to The Street, Pinkberry had 125 stores around the globe.

Looking back from 2011 to 2008, The Street said,

Three years ago, the company also stepped back to build "the right foundation, the right investment team, management team and the right board of directors, before we went back out to market and started to build stores across the country and globe," Graves says. (The CEO came on board then.) "Many companies in the past have grown for growth's sake without the right infrastructure in place."

Mr. Friedman joined Pinkberry as part of that foundation-building exercise in anticipation of a major international expansion driven by significant capital infusion, which is almost exactly the same situation that ChromaDex finds itself in today.

Although there isn't a great deal of significant legal activity observable during Mr. Friedman's tenures at either American Golf or Pinkberry, it does not appear that he is afraid to vigorously defend his company's intellectual property

According to the Los Angeles Times, four months after arriving at Pinkberry Mr. Friedman went after "copycat imitators," serving lawsuits to six frozen yogurt shops alleged to have deliberately emulated Pinkberry's highly distinctive branding.

The businesses were either reproducing Pinkberry's fruit-shaped swirl logo, duplicating the minimalist layout of its stores or filching parts of its name, said Mark Friedman, the company's vice president and general counsel...

"Our brand and our logo really caught on," Friedman said. "These businesses are copying Pinkberry's success in order to ride our tailcoats."

...Until now, Pinkberry has typically sent cease-and-desist letters to rivals that it believed were imitating it. It did file one lawsuit, against Kiwiberry, and won a permanent injunction against that name in May.

My Huynh, owner of Yogiberry in Maryland, said she was slapped with the Pinkberry lawsuit the day after her application to trademark the name of her store was accepted. She said Pinkberry was trying to intimidate smaller businesses.

Earlier in the summer, Pinkberry sent her a letter asking her to change her orange walls, lights and flooring. She repainted the walls black and took her menu off the wall, but refused to make other modifications...

Pinkberry was involved in some litigation in 2011 -- in Pinkberry v. JEC, 2011 WL 6101828, a competitor had trademarked the name "Pinkberry" in Japan, which was preventing the "real" Pinkberry from expanding into that market, which made the "real" Pinkberry mad and litigious.

When Mr. Friedman left Pinkberry in June, 2013, it had 225 stores, and its product development team had resorted to "Cookies and Cream" flavor, which is the opposite of innovation and a sure death knell for product development. It was a good time to leave the company, and I note that Pinkberry's website today only claims 150 stores.

The moral of the story for Pinkberry? Mark Friedman has directly relevant experience in managing legal issues in a rapid-growth international-expansion consumer-market business, specifically including intellectual property. THAT is a bullseye.

Herbalife

Mr. Friedman's next five-year gig began immediately, as GC and EVP of Herbalife.

Understand, this is a huge jump, from being General Counsel of a young, private, small-but-rapidly-growing business to being General Counsel of an established multi-billion dollar public company listed on the New York Stock Exchange.

Herbalife went public in 2004, when it had annual net sales of $1.3B.

Class action law suits in 2004 & 2005 claimed that Herbalife was engaged in improper pyramid marketing.

In 2011, a Court in Brussels ruled that Herbalife was an illegal pyramid scheme.

In 2012, Pershing Square Capital suggested that Herbalife operated a pyramid scheme.

In April, 2013, Herbalife's "long-time auditor, KPMG, resigned after the KPMG executive who oversaw Herbalife audits admitted to providing insider information to a golfing friend about at least five companies, including Herbalife," according to Wikipedia.

Two months later, in June 2013, Mr. Friedman joined Herbalife as general counsel. The timing might be coincidental, but one can imagine that Mr. Friedman was brought in at least in part to improve ethical practices.

It is at least clear that the business practices that people associate with Herbalife did not originate with its General Counsel in June 2013. Mr. Friedman's job was to keep Herbalife out of legal trouble, or at least to achieve some level of damage control.

How well did he do? I don't know, but it looks like it was a wild ride.

In March, 2014, when he had been on the job less than a year, the New York Times ran this article detailing a billion-dollar short attack against Herbalife: After Big Bet, Hedge Fund Pulls the Levers of Power -- Staking $1 Billion That Herbalife Will Fail, Then Lobbying to Bring It Down. From the article:

"Corporate money is forever finding new ways to influence government. But Mr. Ackman’s campaign to take this fight 'to the end of the earth,' using every weapon in the arsenal that Washington offers in an attempt to bring ruin to one company, is a novel one, fusing the financial markets with the political system."

Whatever you think of Elysium Health's "nefariously conceived plan to damage" ChromaDex, it was nothing compared to the force that Pershing Square's William Ackman brought to bear on Herbalife.

In addition, while Mr. Friedman was GC, Herbalife was a federal civil defendant in the Central District of California facing securities claims, and challenges to its multi-level marketing structure. (See., e.g., Bostick v. Herbalife and In re Herbalife Lts. Sec. Litigation)

In July 2016, Herbalife settled the FTC's claims, and according to the New York Times article, thereby successfully weathered what an Herbalife spokesperson described as an "attack by an intransigent short-seller hellbent on a misinformation campaign designed to destroy our company," and what Forbes had described as an attempt to "deliver a death blow to Herbalife."

Herbalife's share price is today close to its all-time high, and yesterday Reuters reported that "William Ackman is cutting almost a fifth of staff and looking to lower his public profile as he seeks to turn around Pershing Square Capital Management after three straight years of losses."

Conclusion

I don't know why Mr. Friedman left Herbalife, or when he did. Apparently a lot of other executives left at the same time.

However, Mr. Friedman's experience is uniquely suited to what ChromaDex would be looking for right now. He has the following experience:

1. Large Public Company

2. Rapid Growth Small Company

3. International Expansion

4. Commercial Litigation

5. Supplements Industry

6. Federal Regulatory Environment

7. Short Attacks

8. Intellectual Property

9. 20+ years experience in-house

You could hardly do better.

Perhaps the most important thing, though, is to have a General Counsel at all. It is a money-saving thing to bring some of that work in-house and to have an expert managing the various outside legal teams.

But it is also a smart business move.

If Elysium Health had had an in-house general counsel before they embarked on their excellent adventure, perhaps someone would have given them different guidance about the risks they were taking than whatever guidance they got. We'll never know. But having an experienced GC on the team is a really good idea for a company like ChromaDex that dreams of being much, much bigger.

___________________

Want More About Mark?

Here is a fluff piece about Mark Friedman written when he was two years into the Herbalife gig.

Executive Insight: Q&A with Mark Friedman, Executive Vice President & General Counsel for Herbalife

#CDXC #Litigation

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