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The Meta Trial Shows the Dangers of Selling Out

The Meta Trial Shows the Dangers of Selling Out

WIRED25-04-2025

Apr 25, 2025 10:00 AM Several founders of hot startups took big payouts and let Mark Zuckerberg gobble up their companies—and came to regret it.
Meta has a lot at stake in the current FTC lawsuit against it. In theory a negative verdict could result in a company breakup. But CEO Mark Zuckerberg once faced an even bigger existential threat. Back in 2006, his investors and even his employees were pressuring him to sell his two-year-old startup for a quick payoff. Facebook was still a college-based social network, and several companies were interested in buying it. The most serious offer came from Yahoo, which offered a stunning $1 billion. Zuckerberg, though, believed he could grow the company into something worth much more. The pressure was tremendous, and at one point he blinked, agreeing in principle to sell. But immediately after that, a dip in Yahoo stock led its leader at the time, Terry Semel, to ask for a price adjustment. Zuckerberg seized the opportunity to shut down negotiations; Facebook would remain in his hands.
'That was by far the most stressful time in my life,' Zuckerberg told me years later. So it's ironic to observe, through the testimony of this trial, how he treated two other sets of founders in very similar situations to him—but whom he successfully bought out.
This is an essay from the latest edition of Steven Levy's Plaintext newsletter.
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The nub of the current FTC trial seems to hinge on how US District Court judge James Boasberg will define Meta's market—whether it's limited to social media or, as Meta is arguing, the broader field of 'entertainment.' But much of the early testimony exhumed the details of Zuckerberg's successful pursuit of Instagram and WhatsApp—two companies that, according to the government, are now part of Meta's illegal monopolistic grip on social media. (The trial also invoked the case of Snap, which resisted Zuckerberg's $6 billion offer and had to deal with Facebook copying its products.) Legalities aside, the way these companies were upended by a Zuckerberg offer made the first few days of this case a dramatic and instructive study of acquisition dynamics between small and big business.
Though almost all of these narratives have been covered at length over the years—I documented them pretty thoroughly in my own 2020 account Facebook: The Inside Story —it was striking to see the principals testifying under oath about what happened. Hey, my sources were pretty good, but I didn't get to swear them in!
In their testimony, star witnesses Zuckerberg and Instagram cofounder Kevin Systrom agreed on facts, but their interpretations were Mars and Venus. In 2012, Instagram was about to close a $500 million investment round, when suddenly the tiny company found itself in play, with Facebook in hot pursuit. In an email at the time, Facebook's CFO asked Zuckerberg if his goal was to 'neutralize a potential competitor.' The answer was affirmative. That was not the way he pitched it to Systrom and cofounder Mike Krieger. Zuckerberg promised the cofounders they would control Instagram and could grow it their way. They would have the best of both worlds—independence and Facebook's huge resources. Oh, and Facebook's $1 billion offer was double the valuation of the company in the funding round it was about to close.
Everything worked great for a few years, but then Zuckerberg began denying resources to Instagram, which its cofounders had built into a juggernaut. Systrom testified that Zuckerberg seemed envious of Instagram's success and cultural currency, saying that his boss 'believed we were hurting Facebook's growth.' Zuckerberg's snubs ultimately drove Instagram's founders to leave in 2018. By that time, Instagram was arguably worth perhaps 100 times Zuckerberg's purchase price. Systrom and Krieger's spoils, though considerable, did not reflect the fantastic value they had built for Facebook.
The founders of WhatsApp did reap a stratospheric buyout, because in 2014 Zuckerberg threw $19 billion to acquire their then tiny operation. But, as told through testimony of some of its executives and funders, the acquisition hinged on promises that cofounders Brian Acton and Jan Koum would retain control. The WhatsApp cofounders hated advertising and were adamant that no ads should ever appear on their service. But documents introduced in the trial indicated that Facebook was basing its valuation on the premise that WhatsApp would be monetized, apparently with those despised ads. The founders left in 2018, when it became clear that Zuckerberg was calling the shots. 'I espoused a certain set of principles, even publicly, to my users, and I said, Look, we are not gonna sell your data, we are not going to sell you ad s, and I turned around and sold my company,' cofounder Brian Acton told me. His penance for this 'crime,' he told me, was spending $50 million to create the Signal Foundation.
Though these founders were pressured to sell, there weren't literal guns to their heads—and they did cash out in exchange for pursuing their dreams. So we shouldn't feel too sorry for them. But lately people in Silicon Valley have been chattering about startup guru Paul Graham's 'Founder Mode' theory, which assumes that the person most responsible for creating a company is the best one to run it—and that the world itself benefits from such people. Zuckerberg, of course, is an iconic founder. But the trial is revealing a narrative beyond the FTC's legal argument about anticompetitive acquisitions: Zuckerberg's penchant for snuffing out founders to advance his own goals.
Of course, sometimes founders are well advised to take the money and run. Consider the case of Clubhouse, the audio-based social networking product that exploded during the pandemic. Its founders, Paul Davison and Rohan Seth, fended off multiple suitors, including a rumored $4 billion offer from Twitter. But after the pandemic—and some poor strategic choices—the service deflated like a punctured balloon. In 2023 it laid off half of its staff. On the other hand, it's still around, and at least in one of its recent town halls, Davison still seemed to be having fun.
One question that Mark Zuckerberg did not have to answer during his testimony was how he viewed his own transition from prey to predator. But I did pose that question to him during my book research. We were discussing the mental anguish he suffered during the 2006 crisis. Zuckerberg told me that he often advises young founders not to give in to pressure. This advice, of course, was not offered to those running companies he wanted to buy. So I asked him directly—given his lesson from the Yahoo experience, did Systrom and Krieger make a mistake by selling to him?
There was a long pause, not an uncommon phenomenon when Zuckerberg considers a question where a candid answer might put him in a damning position. Finally he gave a response that dodged the issue, saying that Instagram could never have reached its heights without Facebook's support. He said pretty much the same thing in court this month. On a legal basis, Meta will not be judged on how he bought off the dreams of founders, but whether he gamed the marketplace through his purchases. No judge will rule on the calculus of selling off a dream.
In Kevin Systrom's testimony, he opined that Zuckerberg denied resources to Instagram in part out of jealousy. The photo-sharing app, which he didn't invent, was growing faster than Facebook's blue app, a Mark Zuckerberg Production. When reporting Facebook: The Inside Story, I became familiar with this tension and put it to Zuckerberg: Was he in fact jealous of the Instagram team?
'Jealous…' he repeated.
Yes, I said. And that you would prefer growth of Facebook's Blue app to Instagram's?
He said no, and explained to me how he thought about it. Early on … it made sense to leave the founders alone and let them build their best products. 'That was incredibly successful,' he says. 'And it made sense for the first five years. But now we're at the point where all the products are big and important. I don't want to build just multiple versions of the same product. We should have a more coherent and integrated product strategy.'
And if that meant losing founders, so be it. 'I can understand if you're an entrepreneur who built one of those things and had awesome success, you'd wake up and say, 'Okay, I'm proud of what I did, but this isn't for me going forward.' That's how I see it, and we're going in the right direction.' Those close to Kevin Systrom, though, believe that had Zuckerberg not asserted control, he would have remained at Instagram for 20 more years.
Jim asks, 'What was it like interviewing some of the pioneers of modern-day computing for Hackers ?'
Thanks for the question, Jim. You are asking me to access the feelings I had over 40 years ago when I was talking first-hand to people who are now legends. But in the circles I traveled they were virtually unknown, even computer science pioneers like Marvin Minsky and John McCarthy. And to my knowledge no reporter had documented the world of MIT hackers, who pretty much invented computer culture.
I do recall as the interviews accumulated, I came to realize that the story I was telling was significant and would have continuing relevance. Also, some of them outright stretched my mind. These people were so interesting that after the book was published I kept talking to computer folk. I still am.
Submit your questions in the comments below, or send an email to mail@wired.com. Write ASK LEVY in the subject line. End Times Chronicle
The Trump Administration pulls the plug on "environmental justice.' Happy Earth Day! Last but Not Least
Who is DOGE? The US government isn't saying.
Whoever DOGE is, it has access to a LOT of health agencies.
Google's more secure messaging system could make scams more likely.
Gen Z'ers are using an app that's Airbnb for the old clothes in their closets.
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What was clearly correct to the Ninth Circuit panel that decided Amazon was clear to Pugh as well. Any inferences to the contrary drawn from Pugh's questions at trial and dissent in 3M Co. v. Commissioner, 160 T.C. No. 3 (2023), were apparently misguided. Pugh found that the IRS derived its PCT value from a severely flawed application of the income method, and these findings had a drastic effect on the PCT value. But she unequivocally affirmed the general validity of the income method, and by extension the regulatory scheme, despite Facebook's determined effort to discredit it. As the opinion concludes: 'Applying the statute and regulations, we conclude that using the income method to determine the requisite PCT Payment value and resulting payments for 2010 produces an arm's-length result if the correct inputs are used. . . . The regulations themselves are not invalid merely because they impose a limit on the expected return on [intangible development costs] at a discount rate reflecting market-correlated risks.' The basic premise underlying the income method is that, for CSAs in which only one party makes any nonroutine platform contribution, the PCT value should equal the difference between the net present value (NPV) of entering the CSA and the NPV of entering the best realistic alternative transaction. The PCT value is thus the difference between the NPV of the PCT payer's reasonably anticipated operating income under the cost-sharing alternative and the NPV of its operating income under the hypothetical best realistic alternative. In general, although not in Facebook, the PCT payer's best realistic alternative is to license the right to exploit the cost-shared intangibles from an independent developer. The NPV of the best realistic alternative is thus the present value of the PCT payer's expected returns as a hypothetical licensee, as determined using either the comparable profits method or the CUT method. In effect, the income method forces the PCT payer to hand the expected NPV excess associated with CSA participation back to the participant responsible for the nonroutine platform contribution. This leaves the PCT payer with an expected return on the cash it invests in the CSA equal to the cost-sharing alternative discount rate, which represents the return that a market investor could expect to earn on an investment with the same risk profile as the CSA activity. If the PCT payer makes nonroutine contributions specific to its own territory, the income method requires that the payer's best realistic alternative be adjusted to reflect a return on its contributions. This approach follows from the general 'investor model,' which provides that all PCT valuation methods should offer CSA participants a return on their aggregate net investment commensurate with the CSA activity's risk profile. A corollary of this principle is that all cash contributions included in 'aggregate net investment' should have a uniform expected rate of return, regardless of whether they take the form of a PCT payment or a cost contribution. As reg. section 1.482-7(g)(2)(ii) explains: 'The relative reliability of an application of a method also depends on the degree of consistency of the analysis with the assumption that, as of the date of the PCT, each controlled participant's aggregate net investment in the CSA Activity (including platform contributions, operating contributions . . . and cost contributions) is reasonably anticipated to earn a rate of return (which might be reflected in a discount rate used in applying a method) appropriate to the riskiness of the controlled participant's CSA Activity over the entire period of such CSA Activity.' The method's logic is sound. The income method is appropriate only when the PCT payer makes no nonroutine platform contributions, so the payer's principal contribution to the CSA will be the cash it invests through the PCT payment and cost contributions. The arm's-length return for a cash contribution is the expected return available to market investors for bearing the risk associated with the CSA activity, and this is what the CSA discount rate represents. Unless the PCT payer makes nonroutine contributions of its own, any excess in its expected returns over the CSA discount rate must be attributable to the PCT payee's platform contribution. One could reasonably suggest that the discount rate for developing sophisticated and potentially extraordinarily valuable technologies, which Pugh found to be 17.7 percent in Facebook, overcompensates PCT payers that don't functionally contribute to cost-shared intangible development. But it prevents the far more egregious results made possible under the 1995 regulations by the residual business assets exclusion, the use of decay curves and finite useful lives, and the general judicial aversion to income-based valuation methods. The income method generates an aggregate PCT value that reflects the full NPV difference between alternatives, and it provides no basis for carving out value attributable to excluded assets. If the income method didn't establish a meaningful limit on profit shifting, a taxpayer like Facebook wouldn't make such a determined effort to invalidate it. Facebook upheld the general validity of a method that aggregates the value of all platform contributions, and in doing so, it implicitly rejected the notion that a residual business asset exclusion survives hidden somewhere in the 2009 and 2011 regulations. Pugh expressly rejected that notion as well, and in short order: 'Petitioner also spends a couple of pages in its opening brief on an argument that Facebook Ireland should not be required to compensate Facebook US for residual business assets. It is true that the definition of intangible property in the second sentence of section 482 in 2010 was limited to the intangible property listed under section 936(h)(3)(B). But the first sentence of section 482 has no such limits; the statute does not constrain the contributions to a CSA that might be compensable through a PCT Payment.' Facebook's more intricate methodological objections, including its 'zero NPV' critique, fared no better. During briefing, Facebook's zero NPV argument seized on the arithmetic relationship between the PCT value and the NPVs of the two alternatives. Because the PCT value is equal to the NPV of the cost-sharing alternative minus the NPV of the licensing alternative, the post-PCT NPV difference between the two alternatives is, by definition, zero. In other words, the income method requires that the PCT payer transfer all of the incremental value associated with entering the CSA back to the PCT payee. According to Facebook, the arm's-length standard entitles cost-sharing participants to retain some of the NPV excess associated with CSA participation. However, as Pugh rightly observed in her opinion, claiming that a PCT payer's cost contributions have an expected rate of return in excess of the discount rate would discredit every PCT method based on the investor model. This claim, the opinion explains, implies that PCT payers should receive a preferential rate of return in excess of what a market investor would receive on the same investment: 'Petitioner's objection that a generic investor would seek a return that is greater than its cost of capital proves too much. It necessarily assumes that this investment should be more attractive than another similar investment. The arm's-length standard does not require a preferred return (a positive NPV); it requires a return comparable to returns on other similar investments. Moreover, petitioner does not explain why in a controlled transaction, such as this, a positive NPV for Facebook Ireland would not result in a negative NPV for Facebook US.' Another way in which the income method allegedly shortchanges PCT payers is by denying them a return for the entrepreneurial risks and functions associated with exploiting the cost-shared intangibles in their territory. Echoing reg. section 1.482-7(g)(4)(vi)(E), Pugh explained that any such contributions can be accounted for by properly valuing the licensing alternative: 'To the extent petitioner's objection is that Facebook Ireland receives no return for its entrepreneurial contributions, that is addressed by proper comparables for the licensing alternative. . . . It is incorrect therefore to conclude that the income method denies an economic profit for any entrepreneurial efforts of the PCT Payor. Petitioner's objections are addressed through selection of the proper inputs into the income method.' Consistently applying this reasoning also led Pugh to reject the way in which the IRS applied the income method in Facebook. The regulations generally assume that the PCT payer's best realistic alternative transaction will be to license the cost-shared intangibles from the developer. This assumption shifts all development risk to the developer, but it leaves the risks associated with exploiting the cost-shared intangibles with the PCT payer. As the final cost-sharing regulations provide (in reg. section 1.482-7(g)(4)(i)): 'In general, the best realistic alternative of the PCT Payor to entering into the CSA would be to license intangibles to be developed by an uncontrolled licensor that undertakes the commitment to bear the entire risk of intangible development that would otherwise have been shared under the CSA. [Emphasis added.] But the IRS valuation expert instead used a 'services alternative' as the best realistic alternative, which treated Facebook Ireland as though it were a low-risk marketing services provider. Under the services alternative, Facebook Ireland received a cost-plus markup of 8 percent, which was nominally based on a set of marketing services companies that bore none of the exploitation risk typically associated with the licensing alternative. Although the 8 percent markup was within the interquartile range (6.8 to 14.2 percent) for the comparables set, it was well below the median value (13.9 percent). Whether it's necessary or appropriate to reward PCT payers with an expected return consistent with the returns of real risk-bearing licensees is open for debate. But the reason that Facebook's theoretical criticism of the income method failed is also the reason that, at least under the regulations, the IRS's services alternative approach was inappropriate. Calculating the PCT value by reference to alternatives with drastically different risk profiles also raises major practical problems, including those associated with a wide discount rate differential that cannot be attributed to a specific risk. Unlike a services alternative, the licensing alternative can differ from the cost-sharing alternative in narrow and predefined ways that relate only to development risk. It's unclear why the IRS opted to use a novel and more aggressive variation of the income method when the method's overall validity was at stake. But it was logically consistent for Pugh to uphold the income method in general while rejecting the method's application in Facebook, and the trade-off for the IRS was a favorable one. By confirming the income method's general validity, Facebook tentatively vindicates the foundations of the current cost-sharing regulations. Pugh rejected Facebook's attempts to create a new residual business asset exclusion and invalidate the investor model, both of which were critical for the regulatory scheme to function. But Pugh's endorsement of the income method's arm's-length bona fides in Facebook followed from her interpretation of the arm's-length standard in general, which could have implications that extend far beyond cost sharing. For Facebook, the income method's zero-NPV effect is invalidating because it creates a conflict between reg. section 1.482-7(g)(4) and the arm's-length standard. This assumes that Treasury and the IRS had an obligation to conform reg. section 1.482-7(g)(4) to the arm's-length standard. It also assumes that the arm's-length standard is a transactional and comparables-based concept, regardless of what the regulations say on the matter. As noted in Facebook, this interpretation implies that any transactional evidence at all takes priority over the methodological reliability standards specified by regulation: 'Where there are no uncontrolled comparables, petitioner maintains, the arm's-length standard requires a 'method that is expected to most closely approximate the way in which unrelated parties price transactions.' Petitioner submits that this approximation can be accomplished through sources such as peer-reviewed academic literature and broad industry standards.' The two assumptions underlying Facebook's argument are related, and the distinction between the two is often blurred. But they are distinct. Whether Treasury and the IRS have a statutory obligation to adhere to something that falls within the ambit of the arm's-length standard is one question, and whether they have to interpret the arm's-length standard in a narrow and archaic way is another. On the first question, Pugh emphasized that the applicable statutory standard established by the first sentence of section 482 is a clear reflection of income. Her opinion observes that 'neither sentence of section 482 expressly adopts the arm's-length standard,' which 'originated in the regulations promulgated under the Revenue Act of 1934.' Only the sentence added by the Tax Reform Act of 1986 directly addresses controlled intangible transfers, Pugh said, and it does not support Facebook's contention: 'The only statutory touchstone relating to intangibles in section 482 is the 'commensurate with the income' requirement. That addition seems to move the statute away from, not toward, an 'arm's length' standard, at least as petitioner defines it; it requires compensation commensurate with the income earned in the transaction. [Emphasis added.] The Facebook opinion doesn't directly say whether Treasury and the IRS could issue regulations that openly repudiate the arm's-length standard. But if the statute doesn't bind Treasury and the IRS to the arm's-length standard, then any obligation to apply it would be a self-imposed regulatory restraint on their broader statutory authority. It would follow that Treasury and the IRS have the right to specify the terms of that self-imposed restraint. However, in Facebook and other best method cases, the authority to openly abandon the arm's-length standard is less important than the discretion to interpret it. On the second question, Pugh was unequivocal. Drawing heavily on the Ninth Circuit majority's reasoning in Altera Corp. v. Commissioner, 926 F.3d 1061 (9th Cir. 2019), rev'g 145 T.C. 91 (2015), Pugh rejected the antiquated interpretation of the arm's-length standard favored by Facebook and other taxpayers: 'In Altera, the Ninth Circuit expressly held that in the light of concerns over third-party comparables, a focus on internal allocations that follow economic activity is an appropriate method to reach an arm's-length result.' Pugh's unqualified reliance on Altera in Facebook is significant in multiple respects. Although Altera is binding circuit precedent in Facebook, Pugh's opinion reflects a broader acceptance of the Ninth Circuit's reasoning. It also confirms that, at least in the Tax Court's view, the Ninth Circuit's holding was unaffected by Loper Bright Enterprises Inc. v. Raimondo, 603 U.S. 369 (2024). Therefore, all taxpayer validity challenges targeting the cost-sharing regulations' treatment of stock-based compensation, including in Abbott Laboratories v. Commissioner, No. 20227-23, and McKesson Corp. v. United States, No. 3:25-cv-01102, should fail. Perhaps even more significant, Pugh's reliance on Altera in a best method case thwarts a ubiquitous and foundational element of taxpayers' arguments in methodological disputes. As the Facebook opinion explains: 'Petitioner attempts to convert the arm's-length standard, as defined in Treas. Reg. section 1.482-1, into an independent rule. But nothing in the text of section 482 bars Treasury from prescribing what arm's length means when no comparable transactions can be identified. Section 482 does not contain the words 'arm's length'; rather, its focus is on clear reflection of income and preventing tax evasion in controlled transactions.' In other words, neither section 482 nor reg. section 1.482-1's general articulation of the arm's-length standard provides any basis for invalidating the method-specific provisions that apply them. This is critical because manufacturing such conflicts has become the basis for taxpayer attacks on all income-based methods, including the CPM in Medtronic Inc. v. Commissioner, T.C. Memo. 2022-84. If legitimized by courts, those conflicts would twist the section 482 regulations into an ineffectual knot. The significance of upholding one of the centerpieces of the 2009 cost-sharing regulations, and by extension the regulatory scheme itself, in Facebook can't be understated. But the Tax Court's broader acceptance of Altera, and the corresponding rejection of an inappropriately narrow interpretation of the arm's-length standard, is arguably even more important. For the IRS, these victories on the law far outweigh its loss on the facts in Facebook.

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