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What is ‘Unconscionable’ in a ‘Shark Tank’ Deal?

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Tonight on Shark Tank, the first entrepreneur, Meredith Jurica of Makeup Junkie Bags, didn’t need a deal. But she was a bit of an unusual case. She didn’t seem to be on the show just for the promotion. She sincerely wanted a shark partner, even after more than half the panel was out — refusing to dilute her ownership in the company for which she had a knack and a passion.

(It feels demeaning to use the word “knack,” but I can’t think of a more appropriate term. Jurica’s business felt right. It fit her. She seemed to have an intuitive sense of what she was doing. Nothing felt forced, and the numbers seemed to be working in her favor.)

As the pitch unfolded, it brought up a series of questions. Most prominently, should a shark make a deal with an entrepreneur, when that entrepreneur is probably better served by not taking on a shark partner (and the shark knows it)? Jurica was likely on the cusp of a slow build, and could have figured out how to up her manufacturing without a shark’s help. Do the sharks have a responsibility to tell her that, especially when they have something to gain (at her expense) by agreeing to invest on terms that take advantage of her different vision of the future?

Of course, Jurica may have wanted a shark for other, unstated, reasons. She had a small, in-house manufacturing operation that allowed her to perform quality control. The company was debt-free, and profitable. But a business on solid ground does not mean that an entrepreneur does not want to take the business in a new direction, one that they envision may lead to greater profit, less personal sacrifice, or just a different day-to-day routine than they currently have.

That’s to say Shark Tank viewers don’t know why Jurica applied to be on the show (or agreed to be recruited). It was a bit surprising that she seemed set on making a deal that included an equity stake. That’s a detail Sara Blakely honed in on, reminding everyone that she still owns 100 percent of Spanx. But Jurica said she wanted someone who was invested in the company’s success. She didn’t appear to want a shark to be her banker, but rather, to provide her with some insight and advice that maybe she couldn’t get from Google. (Entertainingly, during her pitch, she described turning to the search engine to look up what a potential buyer was asking her about before agreeing to supply product).

In many ways it’s a balance: you can come on to Shark Tank and demonstrate that your company is doing so well it doesn’t need an investment; but then you’re faced with explaining why you want to sacrifice equity in your company in exchange for mere money.

That’s the situation Jurica was in. And it lead to an interesting series of on-camera negotiations, ultimately between Kevin O’Leary, Sara Blakely, and Lori Greiner — who ended up getting the deal.

Things got interesting when Barbara Corcoran weighed in. Corcoran spoke in response to Jurica saying she wanted to increase brand awareness, but PR people wanted to charge her $5,000 a month, which she could not afford. Corcoran said not having money was not a liability — that when she had started her own company, lack of cash made her watch every penny.

Then she went out, using what I know as a legal term, although she may not have meant it in a legal sense: “I would be unconscionable going in with you because I don’t think you need anybody.”

This made my ears perk up even more at what was already a compelling pitch. Frequently on Shark Tank you wonder if the entrepreneur is taken advantage of, their vulnerability exploited. Presumably that’s one reason why due diligence follows any on-air dealmaking.

(In real-life venture capital, due diligence happens before the negotiations and companies only pitch to one investor at a time).

An enforceable contract has to meet many legal elements. That’s because the law is supposed to be fair (although, sometimes, I would argue, that fairness is situation-specific and not about social justice). Here’s one definition of what it means for a contract to be “unconscionable”:

“An unconscionable contract is one that is so one-sided that it is unfair to one party and therefore unenforceable under law. It is a type of contract that leaves one party with no real, meaningful choice, usually due to major differences in bargaining power between the parties.”

It’s easy to read definitions of legal terms and think that a particular situation meets it — but perceptions vary, and legislation and legal precedent decide how decision-makers apply these doctrines. That’s why lawyers and judges have jobs.

But it leads to a question: even with due diligence, can a Shark Tank deal be unconscionable? I have a law degree, but I’ve never practiced — so I will posit what I’ll call a layperson’s assumption that it’s a very high bar to meet to void a contract, in whole or in part. So in all likelihood, armchair analysts of the program might say some deals — especially in the early years — were exploitative, unfair, or unwise on the part of the entrepreneur. That doesn’t mean a deal wouldn’t be enforced. But perhaps the parties wouldn’t make the same deal a second time.

Here’s my impression of Meredith Jurica. First: awesome. I don’t even wear makeup, and I want to buy her bags. Second: smart. Third: gutsy. Fourth: empowered. Overall, I liked her a lot. And her stated rationale for taking the deal with Lori, instead of Sara — she wanted more hands-on attention from a shark, and thought Lori was more likely to provide it because she had an equity stake, which Sara would not — was reasoned and logical. But it’s interesting to note that Sara only came back in on the deal to give Meredith an “out,” by which she could get a deal without having to give up equity.

While a Shark Tank deal may not reach the level of unconscionability, the on-air negotiation with Makeup Junkie Bags perhaps demonstrated something else: the entrepreneur is typically at a severe disadvantage, because the sharks have decades of experience, and have negotiated hundreds of these deals. The entrepreneur is likely new to business, and it’s probably their first negotiation with a potential investor. On a television set. In front of cameras. Where there’s an added pressure to — knowing the pitch will be broadcast — promote the product as much as impress the sharks.

Which says only that, perhaps at the end of the day, it’s a show — with real-life consequences for the parties to the deals that are eventually signed. And I secretly hope Jurica backed out of that deal with Lori.

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