Hsu Untied interview with Morgan Fong, General Counsel of Instacart

Richard, thank you so much for having me. I'm really pleased to be able to join you. It's taken us a little while to schedule it, but I'm glad that we're finally able to do it.

Totally, totally.

I wish, Richard, I had a really honorable and principled answer for why I went to law school, but the truth of it was I really liked college. I had a wonderful time and I didn't really want to face the real world. And I couldn't deal with blood, so that ruled out medical school. And law school seemed like a pretty interesting place to spend the next three years while I figured out what I wanted to do when I finally grew up.

No. My family was in the pistachio nut business here in California. And the thing about a law degree, they said, is you can kind of do anything: you can do business, you can go into... there are journalists who have law degrees, there are academics and professors, and there's a whole sort of reformed lawyers, I think is what they call it. So I thought it would present a lot of options for me after graduation from law school. Not surprisingly, I, with like 90% of my fellow classmates, decided to go into big law straight away, so I can't say I was particularly creative or innovative in my immediate post-law school choices.

Law school for me was interesting. I was at Yale for my undergraduate, I lived on campus all four years, and it was a very insular experience, very much focused on undergraduates. When I was at UC Berkeley, it's a huge campus with a bunch of different schools: engineering, architecture, etc. So I did feel a little bit lost, even though Berkeley Law itself was a wonderful community. Academically it was very, very challenging for me, just to come from reading cases and learning much more on the Socratic method way. But I made some really great friends, and it wasn't unduly competitive. I think some law schools and some people's law school experience can be quite the grind.

Yes, of course. That was set at Harvard in the 70s. And actually, one of my writing tutors at Berkeley was the author of that original novel.

I forget his name, it's embarrassing to mention it. But anyway, it's a good book, and it was made into a movie with... was it John Gielgud? Someone like that.

I think the one nice thing about law school is that it's three years, so it gives you two summers to actually try different law jobs and to try things out. Because obviously, as everyone who's a practicing attorney knows, being a practicing attorney is completely different from being a law school student. My first summer, I was an extern for a federal judge in the Northern District, in the Oakland offices. That was a lot of work assisting clerks with writing memos, bench memos, and helping draft preliminary versions of orders. I think what struck me was that I was more interested in deal-making than in litigation and lawsuits. Interestingly, as general counsel, you have to be a jack of all trades. But I thought that, based on my family's business background and my own personality, I liked deal-making more. I liked the idea of collaboration that can come from deal-making, even though it's arm's length transactions and you're at opposite sides of the table. Ideally, it has to almost by definition be a win-win situation; otherwise you're not going to get two signatures on the signature page. So my second summer, I was a summer associate at Wilson Sonsini, and that was in 1999. For those who can remember practicing then, that was the complete height of the first internet boom. Silicon Valley had really established itself globally in a way, and Yahoo was famously the most valuable company in the entire world. That was where I first got my feet wet with deal-making, at Wilson during that time, and it was a really exciting time to start out practicing.

Yes, I generally did. I found the work very interesting. I thought my colleagues were very smart. I had the benefit of working with some really wonderful attorneys when I first started at Wilson Sonsini, who became mentors to me. They're still practicing and still mentors to me, people I regularly bounce career advice or legal questions off of. That was really wonderful. I felt I was getting the kind of training that was really why you would want to put in what are actually quite long hours at a firm. It was all very rewarding. The atmosphere and the kinds of clients and deals were really exciting. The one thing I absolutely found terrible was time entry and keeping track of time. I found that to be one of the soul-crushing tasks out there. Then at some point, like many people who go in-house, I realized I was not someone who wanted to be in private practice for the rest of my life. With that being the case, the question was whether I wanted to stick around and make partner. It wasn't just whether I could make it, but whether I wanted to be doing this for 10, 20, 30 years. It was not a logical decision but a very emotional one, where a part of your body just says no, I don't want to do this. I've learned to really listen to my intuition and that inner voice, in addition to the logic and writing lists of pros and cons.

My first in-house job was at Trulia, which is the online real estate portal. I got that job through a friend, a former coworker in a professional network. I think if you do not have a rich, vibrant professional network, I highly encourage people to go out and start building one; it's really going to be the make or break of a wonderful and fulfilling career in law, at least in my experience. I was a director there, and I basically oversaw the commercial and business law, IP, and privacy functions of that legal department. When I joined, Trulia had just become a public company. It was a good bridge for me between a law firm, which was very much about excellence in drafting and negotiation and putting out world-class work product, to a role where you're in-house counsel. Of course, the bar for work product still has to be very high, but there are other considerations: speed of execution is a consideration, making sure your internal cross-functional stakeholders understand what you're doing. I actually had to understand what they wanted: what does the finance team want in terms of payment terms, can we agree to this insurance provision, what does our HR team say about rolling out this kind of policy to our employees. That really developed my sensitivity to other concerns of a company and a business that are beyond the purely legal things like warranties or limitations of liability or escrows. Once I made that transition, there was a learning curve because these were things I had never really had to deal with at a firm; they were always the work of the person on the other side of the phone to run down. That part was a bit of a learning curve. And of course, it's very different to work in a tech company; you need to learn much more about the technology of your business than you ever do in private practice. I ended up knowing quite a bit about the real estate industry. That's an important piece of advice I would give: if you're going to go in-house, you really have to like the business of the company you're at. I tell people who interview at Instacart that you kind of have to be interested in groceries and food and logistics, because that's what we do. Fortunately, both Trulia and Instacart are missions I find really interesting and fulfilling.

Network again. The precipitating factor was that Trulia was acquired by Zillow, and I worked on that deal in the closing. I knew as part of that that I was going to be given my walking papers at the time of closing, so I knew my time at Trulia was coming to an end. I had planned to take a few months off and then recalibrate and figure out what I wanted to do. I did know after a year and a half at Trulia that I very much wanted to stay in-house; I did not want to go back to a firm. I think a lot of people, once they make that switch, find themselves in the same place. So my network yet again came to the rescue. I had the opportunity to talk to the GC of Instacart, who had just started. The company had been around for about three years, with about 100 people, very small, but had been very successful in early fundraising and was considered one of the companies to watch. He had just started and quickly realized he needed to build out a legal team. I was the second hire, the third start of that legal department. Then I found myself completely buried under three years of what they call tech debt, but it's legal debt too. The early Instacart legal team had to re-architect and rebuild things, set up structures and scaffolding. I hadn't had to do that at Trulia because it had just become a public company, so I had the ability to see what it looks like when you're a thousand-person public company going to a series C, 100-person classic warehouse startup. I knew, 'Okay, here is where we are, but I know we need to get here, and this is the path we can take to do this.' That was really helpful. I think if I had gone directly from a firm to a company like Instacart in 2015, I would have lost my mind. It would have been a little too wild West for me at the time. Having seen that, I feel pretty comfortable at all the different ranges, but only because I had the benefit of those prior experiences.

You're right, it was a completely different business, a completely different industry. There was a similarity in that Trulia had a pretty successful ads business, and Instacart when I joined in 2015 had the aspirations of a very successful ads business. I remember interviewing with the general counsel, what was supposed to be a 30-minute coffee turned into an hour and a half. I also talked to the guy who led the business function of Instacart, and we ended up talking for two hours in our interview too. Even though it was new, because of my experience at Fenwick and Wilson and Trulia, my mind can put deals together and revenue models together fairly quickly. It was fun to talk through how we were going to build this business and agree that we all had the same vision for what it could be.

I think that's something every manager, whether they're a lawyer or not, has to develop. It's the distinction between being an individual contributor and being a manager. There are times I'm an individual contributor doing things myself, and times I'm delegating and keeping track of things. How much I'm involved varies by project. Getting that art versus science part right requires experience and judgment. There was no strict mathematical formula for that, but I realized I wanted to make sure the end result is the best it can possibly be. Sometimes that means me doing it myself. I've been really good about implementing the adage 'hire people who are better than you,' and I think I have hired people who are better than me in their respective functions. So I look at a project and say, 'This needs the best employment mind we have,' and I put that person on it. My value is to provide strategic guidance, make sure the goals are clear, and then check that we delivered what we said we would. When a general counsel realizes that they can't know everything, and that they're not a department of one, they have to figure out how to divide between other teams and outside counsel. But the most important thing to remember is that it's your job to make sure your business has the best legal advice it possibly can. A good general counsel will be very nimble in how they achieve that.

I have periodically had opportunities to guest lecture, and I haven't because of where things are with Instacart, including the pandemic; I just really haven't had the time. I think I would like to start getting more involved with teaching. I don't necessarily see myself as a full-time law professor, but I think there would be some fun classes and talks to give around how law can be a tool in entrepreneurship to build very successful, durable, epic businesses. If I were to teach something, that would be my jam. Certainly, I love mentoring. I mentor folks on my team, and I love mentoring people I've met through different networks, including Asian-American and LGBTQ legal organizations. Very related to that would potentially be some advisory work. These might be my third or fourth act, but I'm still very much in my second act here at Instacart.

Absolutely, Richard. You'll be the first.