We are recognized as a leader in representing takeover targets and acquiring companies in contests for corporate control.
Our takeover and defense practice is one of the most experienced and well respected in the world and integrates members of our premier M&A, litigation and securities regulation and corporate governance practice groups.
As such, our practice is grounded in our aggressive and creative, multidisciplinary approach to the complex legal and business challenges presented in contests for corporate control.
Our reputation in the hostile takeover world is longstanding. From our victory in the 1985 landmark Unocal Corp. v. Mesa Petroleum case in the Supreme Court of Delaware – widely considered one of the seminal cases in the hostile takeover arena – to the recent successful defenses of our clients Tenet Healthcare and Transatlantic Holdings against multi-billion dollar hostile bids, our practice has repeatedly achieved major victories for our clients under the most difficult circumstances. We have achieved our success by combining the expertise of our leading mergers and acquisitions attorneys with those of our premier litigation and securities regulation and corporate governance practices to deliver a cohesive and creative response to each situation. Further, our takeover specialists are thought leaders in this space and are known for their ability to guide clients through the complexities of a hostile M&A transaction, including investor and media relations.
We consistently employ creative tactics. In the largest hostile takeover bid in the computer industry, we successfully defended Computer Sciences Corporation in fending off a proposed $10 billion takeover bid launched by Computer Associates. Media and Wall Street analysts predicted that the takeover was a done deal with Computer Associates, a Goliath of software developers, offering to pay Computer Sciences Corporation shareholders a $28 premium over the then-trading price. Less than one month later, Computer Associates dropped its bid. Our successful defensive strategy ranged from the courts to government agencies to the halls of Congress. The New York Times lauded our “textbook perfect defense against a hostile offer.”
In another recent transaction, which took on international political dimensions, we represented Kraft Foods Inc., the world’s second-largest food company, in its successful $21.4 billion unsolicited acquisition of Cadbury, the well-known British candy maker. The proposal involved complex multi-jurisdictional takeover issues, which our M&A and regulatory attorneys in the U.S. and the U.K. successfully navigated on behalf of our client.
More recently, we successfully defended Tenet Healthcare against a hostile bid from rival healthcare provider Community Health Systems. Our firm proposed an investigation of Community’s claims of significant revenue synergies in the combined company. The investigation uncovered evidence that Community had been improperly admitting patients and overbilling Medicare. Our litigators filed a complaint on behalf of Tenet, which turned the tide of the transaction; Community’s stock was down approximately 40% on the day the lawsuit was filed. Soon thereafter, the U.S. Department of Health and Human Services, the Securities and Exchange Commission (the “SEC”) and the Justice Department opened investigations into Community’s improper billing. One month after Tenet’s lawsuit was filed, Community withdrew its offer. Various media outlets and Wall Street analysts praised the Firm’s efforts, noting the defense “might rank pretty high in the legal pantheon of aggressive counter-punches” and was an “amazingly ‘offensive’ defense to [Community’s] unsolicited offer.”
We also advise our corporate clients on a regular basis on an array of antitakeover matters, including review of organizational documents, the preparation of takeover response plans and policies, preparation of “on the shelf” shareholder rights plans, and periodic review with the board of directors and executive committees of trends and best practices in the takeover area.
Our Firm has developed the premier practice in the U.S. in representing corporations against all forms of shareholder activism, including dissidents’ efforts to seek board representation, de-stagger board composition, weaken antitakeover defenses and implement other special interest shareholder proposals. We have recently represented many Fortune 500 and other companies in responding to shareholder activism and have represented many of the country’s largest companies in successfully negotiating non-public resolutions with the largest and best-known activist investors, including Relational Investors, Third Point, Carl Icahn and Nelson Peltz. Our Firm also recently represented the Business Roundtable and the U.S. Chambers of Commerce in their successful challenge of the SEC’s “proxy access” rule, which would have required director candidates nominated by certain large shareholders be included in a company’s proxy materials.
In responding to specific shareholder activism situations, we integrate our Firm’s expertise in securities regulation and corporate governance, M&A and litigation to bring targeted solutions to each of our clients. Our multidisciplinary approach enables us to explore a full range of options for each activist situation, including potential regulatory and litigation remedies, aggressive proxy contests, or quick and effective engagement with the activist, if appropriate, to resolve a dispute before it becomes a public contest.
We also advise clients on an array of corporate governance-related matters that impact shareholder activism, including composition, procedures and responsibilities of boards and committees, analysis of director independence issues, fiduciary duty issues and D&O indemnification and insurance issues. We draw on our extensive experience in corporate governance matters to provide advice that integrates both current best practices and practical judgments to address complex situations that pose regulatory and liability risks. Our lawyers are active in developing and reviewing governance policies and have developed expertise in preparing and tailoring the key governance documents responsive to the needs of our clients.
Hostile M&A Representative Matters
- Transatlantic Holdings: Representation of Transatlantic Holdings, a leading international reinsurance company, in its successful defense against a $3.3 billion unsolicited exchange offer and consent solicitation from Validus Holdings
- Tenet Healthcare: Representation of Tenet Healthcare in its successful defense against a $7.9 billion unsolicited takeover offer from Community Health Systems
- Kraft Foods: Representation of Kraft Foods in its successful $21.4 billion unsolicited bid to acquire Cadbury
- Roche: Representation of Citigroup Global Markets, Inc. as financial advisor to Roche Holding in its $5.7 billion unsolicited offer to acquire Illumina, a provider of integrated systems for DNA sequencing
- GlaxoSmithKline: Representation of Lazard and Morgan Stanley as financial advisors to GlaxoSmithKline in its $2.6 billion unsolicited offer to acquire gene-targeting drug developer Human Genome Sciences
- The Williams Companies: Representation of The Williams Companies in its $5.5 billion unsolicited offer to acquire Southern Union Company
- GeoEye, Inc.: Representation of Goldman Sachs as financial advisor to GeoEye, a provider of satellite imagery and geospatial information, in its unsolicited offer for DigitalGlobe
- International Paper: Representation of UBS Investment Bank as financial advisor and dealer manager to International Paper in its $4.5 billion unsolicited tender offer for Temple-Inland, a manufacturer of corrugated packaging
- iBasis: Representation of Special Committee of iBasis, Inc. in connection with an unsolicited tender offer from Koninklijke KPN N.V.
- Emulex Corporation: Representation of Emulex Corporation in connection with Broadcom Corporation’s $912 million unsolicited tender offer
- Indian Film Company Limited: Representation of The Indian Film Company in connection with an unsolicited offer by Network 18 Holdings
- EMC Corporation: Representation of Barclays as financial advisor to EMC in its hostile bid for Data Domain
- Gladstone plc: Representation of Gladstone plc in successful defense of hostile bid by Constellation Software
- Liberty Shipping: Representation of Liberty Shipping in connection with $308 million unsolicited offer to acquire International Shipholding Corporation
- Pier 1 Imports, Inc.: Representation of Pier 1 Imports in attempted takeover of Cost Plus, Inc.
- Catterton Partners: Representation of Catterton Partners in its acquisition of Restoration Hardware (facing a competing proposal)
- Yahoo! Inc.: Representation of Goldman Sachs and Lehman Brothers (now Barclays) as co-financial advisors to Yahoo! Inc. in connection with Microsoft Corp.’s $44.6 billion unsolicited offer
- Allergan, Inc.: Representation of Allergan in its acquisition of Inamed Corporation, a global healthcare company, in an unsolicited tender offer
- Coeur d’Alene Corporation: Representation of Coeur d’Alene Corporation in its hostile cross-border tender offer for Canadian mining company Wheaton River Minerals Ltd.
- Recordati S.P.A.: Representation of Recordati S.P.A., an Italian pharmaceutical group, in its tender offer for Warsaw Stock Exchange listed Polfa Kutno, the first unsolicited offer for a Polish company, and subsequent sale to U.S.-based Ivax Corp.
- Maxwell Shoe Company, Inc.: Representation of Maxwell Shoe in connection with its defense of an unsolicited offer by and subsequent merger with Jones Apparel Group
- Atlantic Coast Airlines Holdings, Inc.: Representation of Atlantic Coast Airlines Holdings in connection with its successful efforts to fend off a hostile consent solicitation and takeover attempt by Mesa Air Group
- ArvinMeritor, Inc.: Representation of ArvinMeritor, Inc. in its $4.4 billion unsolicited tender offer for Dana Corporation
- PeopleSoft, Inc.: Representation of PeopleSoft, Inc. in connection with a hostile tender offer by and subsequent $10.3 billion sale to Oracle Corporation
- Northrop Grumman Corporation: Successful hostile tender offers with an aggregate amount of $13.8 billion, for TRW, a Cleveland-based manufacturing conglomerate, and Grumman Corporation
- Gucci Group N.V.: Acquisition of partial interest of Gucci by Pinault Printemps Redoute and defense of subsequent hostile takeover attempt by LVMH Moet-Hennessy Louis Vuitton
- Cadence Design Systems, Inc.: Acquisition of Quickturn Design Systems. Cadence was white knight to Mentor Graphics’ hostile bid
- Global Motorsport: Represented Global Motorsport, the largest provider of after-market parts for Harley Davidson motorcycles, in the successful defense of a hostile takeover effort launched by Golden Cycle. While the hostile suitor was held at bay, the company negotiated a white knight recapitalization transaction with Stonington Partners
- Computer Sciences: Successfully defended Computer Sciences Corporation in fending off a proposed $10 billion takeover bid launched by Computer Associates
- Pope & Talbot, Inc.: Hostile tender offer for 51% of Harmac Pacific
- Moore Corporation Limited: Represented Moore Corporation Limited in the leading case, Moore v. Wallace, credited with creating the “Just Say No” defense
Shareholder Activism Representative Matters
- Business Roundtable and The U.S. Chambers of Commerce: Representation of both petitioners in their successful challenge of the SEC’s “proxy access” rule, which would have required director candidates nominated by certain large shareholders be included in a company's proxy materials
- Hewlett Packard: Representation of Hewlett Packard in connection with a negotiated settlement with Relational Investors prior to the launch of a potential proxy contest or other public dispute
- AOL: Representation of AOL in connection with its proxy contest with Starboard Value
- USA Technologies: Representation of USA Technologies in successful defense of proxy contest
- Ned Sherwood: Representation of Ned Sherwood, a major stockholder of US-listed ChinaCast Education Corporation, in his successful proxy fight to elect three nominees to ChinaCast’s six-member board
- Zayo Group: Representation of Zayo Group in its $2.2 billion acquisition of AboveNet, Inc., which was then subject to a proxy contest with Corvex Management
- Parlux Fragrance: Representation of Parlux Fragrance in successful defense of a consent solicitation by an activist shareholder to replace the entire board
- Nabi Biopharmaceuticals: Representation of Nabi Biopharmaceuticals in connection with a proxy contest initiated by Third Point, LLC
- CSK Auto Corporation: Representation of CSK Auto in connection with responses to activist hedge funds, attempts by competitor to disrupt sales process and ultimate sale to O’Reilly Automotive
- Delcath Systems: Representation of Delcath Systems in successful defense of consent solicitation by an activist shareholder to replace the entire board
- The First American Corporation: Representation of The First American Corporation in connection with advances by Highfields Capital
- Beverly Enterprises Inc.: Representation of Lehman Brothers (now Barclays) and JPMorgan as financial advisors to Beverly Enterprises in its defense of a hostile proxy contest from Formation Capital
- The Cheesecake Factory: Representation of Special Committee of the Board of Directors of the Cheesecake Factory in connection with advances by Nelson Peltz
- Tiffany’s: Representation of Tiffany’s in connection with advance by Nelson Peltz
- Ashworth, Inc.: Representation of Ashworth, Inc. in connection with a proxy contest initiated by activist hedge fund Knightspoint Group
- Hallwood Realty: Representation of Hallwood Realty in connection with an unsolicited hostile offer by an affiliate of Carl C. Icahn
- Clarus Corp.: Special Counsel in proxy contest initiated by two different dissident groups at the same time
- Arguss Communications, Inc.: Successful defense of Arguss in consent solicitation by dissident shareholders
- Coastcast Corporation: Defense of Coastcast in proxy fight with Jonathan Vannini
- Powell Group: Proxy contest for board seats of ERLY Industries Inc.
PRACTICE GROUP LEADERS