Some notes on the situation:

* Icahn’s factual problems: No, I’m not just talking about referring to David Sacks as David Yammer. Icahn claims that Marc Andreessen, via eponymous VC firm Andreessen Horowitz, made “a $150 million investment in Kynetic” – the part of GSI Commerce that eBay didn’t want upon purchasing the company in March 2011 for $2.4 billion.

The reality, however, is that Andreessen Horowitz participated in a $150 million financing for Fanatics, which is one of three businesses owned by Kynetic (the others are ShopRunner and Rue La La). More importantly, Andreessen Horowitz was a minority participant in the round, which was led by Insight Venture Partners. Also worth noting that the formation of Kynetic was not in the original GSI purchase terms with eBay, and that the $150 million Fanatics investment came more than a year after the GSI acquisition occurred.

* eBay’s factual problems: Icahn’s main gripe revolved around eBay’s 2009 sale of Skype to an investment group that included Andreessen Horowitz. In response, eBay wrote in a blog post that “eBay’s board explored all options and engaged in a competitive process with multiple bidders including several financial and strategic buyers.”

As you might recall, eBay initially had a major problem with Skype in that it owned the company’s service but not its underlying IP – and was in the midst of patent-related litigation with Skype’s founders Niklas Zennstrom and Janus Friis. When eBay began soliciting buyers (while simultaneously considering a Skype IPO), only two groups appear to have showed up with actual bids: The Silver Lake-led group that included Andreessen, and a private equity-backed group led by Zennstrom and Friis. To the best of my knowledge, no strategic ever submitted a formal offer – largely because of the litigation risk (something Silver Lake was willing to accept). By the time Silver Lake agreed to sell Skype to Microsoft (MSFT), the IP issues had been settled.

* Flashback: In a 2011 statement to Forest Labs shareholders, Icahn’s attorney wrote the following after accusations that some of Icahn’s director nominees had conflicts of interest:

“Potential conflicts of interest are by no means rare, though, and seem to be especially frequent among technology and biotech companies. Each of those fields tends to be intensely technical by nature, and corporations involved in those areas  often  find  that  it  is useful to have a board of directors with significant experience in those areas, which means that at least minor conflicts of  interest  often  arise.  In addition, these firms are frequently funded by venture capital; the venture capital firms invariably put their own directors on the boards; and those directors or their firms often have direct and material conflicts of interest because they usually fund/control potentially competitive corporations as well… To  the extent these potential conflicts of interest actually  exist,  they  are  routine  matters  with  which  corporate  boards of directors  normally  deal  and  pose  no  significant  issues.”

* VC board seats: I understand why venture capitalists sometimes choose to sit on public company boards, but continue to question the wisdom of such decisions. I don’t believe that Marc Andreessen is spilling state secrets on either side of his business life, but he certainly has opened himself (and his firm) up to unnecessary PR headaches.

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