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Practice Areas

Advertising litigation – Kramer Levin p.85 Insurance p.181 Antitrust meets M&A – Freshfields p.90 Intellectual property – Finnegan p.184 Antitrust p.94 Intellectual property p.187 Appellate p.97 International arbitration p.190 Banking and finance – Weil p.100 International trade – Hogan Lovells p.193 Banking regulatory – Clifford Chance p.103 Labor and employment p.197 Banking and finance p.107 Leveraged finance – Paul Hastings p.200 Bankruptcy and restructuring p.111 Life sciences – Goodwin p.204 Capital markets – Cahill p.115 Life sciences p.207 Capital markets p.119 Litigation p.210 Climate change and renewable energy p.123 Media and advertising p.213 Commercial litigation – Cleary p.125 PPP – Ashurst p.217 Corporate – Jones Day p.131 Privacy and data security – Perkins Coie p.221 Corporate/M&A p.135 Privacy & data security p.225 Derivatives and securitization – Private equity – Goodwin p.227 Allen & Overy p.138 Private equity p.232 Emerging companies – Gunderson p.141 Product liability p.235 Energy and projects p.145 Project finance – Milbank p.238 Environment p.149 Real estate – Adam Leitman Bailey p.241 Environment – Allen & Overy p.152 Space law p.244 First Amendment, libel and defamation p.156 Sports & entertainment p.247 Food & beverages, retail and Tax p.250 franchising p.159 Technology – Goodwin p.253 Funds and investment management – Fried Tech transactions – White & Case p.257 Frank p.163 Technology p.261 Government p.166 Transportation and space – Milbank p.264 Government regulatory – Akin Gump p.170 Venture capital – Gunderson p.267 Healthcare – Waller p.173 Wealth management p.270 Healthcare p.178 White collar litigation – Cahill p.272

Advertising litigation – Kramer Levin www.chambers-associate.com

Advertising litigation – Kramer Levin

Media is one of the most desirable sectors for students entering the legal profession. We interviewed the experts at Kramer Levin to find out about their varied, exciting practice.

The Basics staying abreast of developments in the law and advertis- Chambers Associate: What is covered by advertising ing space generally. litigation law? CA: What do the senior associates do? Norman C. Simon, partner, co-chair: Our Advertising Litigation practice covers four areas. Firstly, we advise Samantha V. Ettari, special counsel: Senior associates our clients on claim substantiation and advertising copy and counsel are involved in every facet of a false adver- in order to ensure both are done carefully and issue spot tising representation, including early case assessment, to mitigate the risk of litigation. Secondly, we represent discovery strategy, interviewing client and third-party our clients as plaintiffs and as defendants in litigation custodians and coordinating document and data col- under the Lanham Act (the federal false advertising lections. We’re researching and coordinating on legal statute). Thirdly, we represent our clients as challeng- defenses or asserting claims, preparing for and taking ers and as advertisers in challenges before the National depositions, coordinating with experts and then examin- Advertising Division (NAD) and in appeals before the Na- ing and crossing witnesses at trial and drafting plead- tional Advertising Review Board (NARB), which are well- ings and motion practice. established business-to-business self-regulatory bodies. Finally, we defend our clients in putative class action Patrick J. Campbell, senior associate: Senior associ- litigation brought pursuant to state consumer protection ates play a key role in working with the client to marshal laws. We also keep our clients current on advertising liti- evidence to support a claim or persuade a jury. They of- gation developments by publishing a weekly newsletter, ten take leadership roles in drafting written submissions The Advertising Litigation Report, through our app (The and contribute to the strategy discussion in how best to Ad Lit Report App), and via a monthly webinar present- challenge a competitor’s advertising or defend a client’s ing Advertising Litigation Highlights. claims. They also play a key role in interfacing with clients and clients’ experts to develop arguments and in- CA: What do the partners do? vestigate the facts underlying an advertising dispute.

NCS: Partners are involved in every facet of advertising CA: What do the junior associates do? litigation, from protecting our clients from litigation by advising on claim substantiation and advertising copy Dayna M. Chikamoto, junior associate: Kramer Levin clearance to deciding whether to bring an advertising staffs cases leanly, so junior associates are given the challenge and in what manner (e.g. preliminary injunc- chance to get a wide range of substantive experience tion or temporary restraining order - and federal court early in their careers. Document review provides junior versus NAD). Also working hand-in-hand with clients to associates with the unique ability to absorb the facts develop and execute on effective strategies for trials and of the case in a way that more senior associates do not hearings under the Lanham Act and winning arguments have the luxury of doing, and this acquired knowledge before NAD/NARB. We develop effective arguments to becomes essential in the later stages of discovery. I have Practice Areas Practice defeat putative class actions at the motion to dismiss or had the opportunity to shadow partners at court appear- class certification stage. We’re writing and editing briefs ances. Often our clients call asking for claim substantia- and other written submissions, conducting and defend- tion advice, and typically the junior associates are tasked ing depositions, handling arguments and examining wit- with discrete research assignments related to these in- nesses in court or at NAD/NARB. Where appropriate, quiries. negotiating the most favorable settlement possible to resolve a matter. Partners are also responsible for man- Ryan Gander, junior associate: Associates conduct le- aging our team of exceptionally talented lawyers, and gal research, draft internal memoranda, prepare deposition outlines, and draft dispositive motion papers. Asso-

85 www.chambers-associate.com Advertising litigation – Kramer Levin

ciates also help edit Kramer Levin’s weekly advertising supposedly false advertising that TrueCar provides a litigation publication and present a monthly webinar to car-buying experience without “haggling” or negotiation. keep our clients up-to-date on the latest developments Ultimately, through a string of progressive victories, in- in advertising law. cluding the court’s granting of our motion to exclude the plaintiffs’ damages expert, we were able to secure the Harry P. Morgenthau, junior associate: One of the dismissal of the case. As a junior associate, my primary things that drew me to our advertising litigation practice role was to master the facts. I reviewed documents, iden- is the broad range of opportunities available to junior as- tified and prepared exhibits for depositions, worked on sociates. Juniors are treated as full members of the team deposition outlines, and was afforded the opportunity to – attending meetings, interfacing with clients, and con- take the deposition of one of the plaintiff dealerships in tributing ideas for how to best serve those clients. this case. I also conducted research and assisted in drafting briefs. CA: Describe your latest case: what was the client’s problem? What was your role? How did you spend your What are the different parties you are likely to liase days? with during a case?

SVE: I have most recently worked on a large federal NCS: We team with in-house counsel to develop case Lanham Act litigations in the Southern District of New strategy. We also regularly liaise with a client’s business York. The case concerned allegations of false advertis- leadership because a deep understanding of the busi- ing against a client concerning a pregnancy product’s ness is integral to successful litigation. We frequently attributes. The matter was bifurcated into two phases: interface with a client’s marketing team, and equally liability and damages. Kramer Levin was retained to rep- frequently with a client’s research and development or resent the client in the damages phase. I was the lead other internal science teams involved with claim sub- senior associate in the matter and handled cross-border stantiation. And, of course, we regularly liaise with our document collection and production, assisted in pre- colleagues in the advertising litigation bar, both across trial conferences, coordinated with the damages expert, the aisle in litigation and at regular industry conferences took and defended pre-trial depositions, assisted on all and events. elements of trial preparation, and sat at counsel table for the defense at trial, which included arguing evidentiary motions and putting in witness statements and Your Career corresponding evidence. Following trial, I prepared the CA: What was your route into getting staffed on adver- first draft of post-trial submissions, including proposed tising litigation matters? findings of fact and conclusions of law. The damages ultimately awarded against the client were a fraction of SVE: When I joined the firm, I quickly found that I enjoyed those sought. the early responsibilities given to associates in civil matters. The Co-Chairs of the Advertising Litigation group PJC: We recently represented Johnson and Johnson Sur- were working on some of the most cutting edge and gical Vision in a successful NAD challenge to Alcon’s exciting civil litigation at the firm and were known to be false and misleading comparative advertising regard- great attorneys to work for and learn from. I expressed ing J&J’s product. Our client’s product is a revolutionary interest in working on matters with them and took on any piece of intraocular technology that Alcon was falsely small project or assignment they had so that they could Practice Areas portraying as similar to its traditional intraocular lens. As get familiar with my work and work-ethic. Eventually I the associate on the team, I was involved in drafting our was staffed on a matter that came to the firm on the cusp challenge briefing, coordinating with the client’s tech- of trial. I had a steep learning curve on many advertising nical experts and our own internal experts in rebutting law specific issues, but was also able to leverage exten- Alcon’s technical arguments, and preparing presentation sive trial experience to bring value to the matter. That materials for the NAD. The highly technical nature of this trial, the client interactions, and the outcome were some case offered an exciting challenge in both understanding of the most rewarding experiences in my legal career up the technology at issue and articulating our arguments to that time, and I actively sought out more advertising in a simple and effective way that conveyed to NAD how litigation in its wake. a consumer would understand the claims. DMC: I was lucky that the first case I was assigned to at DMC: We recently represented TrueCar in a Lanham Kramer Levin was an advertising case. Since then, I re- Act false advertising lawsuit in the Southern District of ceived advertising litigation work organically, with part- New York brought by 108 individual car dealers across ners calling me to see if I have availability to be staffed the country. The plaintiffs claimed they were injured by on their cases. The firm also has a litigation assignment

86 Advertising litigation – Kramer Levin www.chambers-associate.com

coordinator to assist with staffing juniors on cases, and but is important in order to learn the facts of the case she keeps the interests and preferences of junior associ- and makes you a valuable resource later in the case. ates in mind when making staffing decisions. CA: What is it like working with such well-known cli- RG: While I was still in law school, I took a seminar on ents? advertising law taught by the Co-chair of Kramer Levin’s Advertising Litigation practice. After I joined the firm, I SVE: Many of our clients are leaders in their product or made clear to partners and associates in the department industry. It is exciting to work with well-known, name- that I was interested in practicing advertising law. brand products and to learn about the underlying science of the products and/or claims. HPM: One of the partners in the Advertising Litigation practice, Eileen Patt, interviewed me when I applied to DMC: We do work for a lot of big, well-known companies, be a summer associate with the firm. When I started at and it is interesting to have a behind-the-scenes look at Kramer Levin, she remembered me from our interview what goes into their advertising and marketing. and invited me to work on an advertising matter. I haven’t looked back! HPM: Well-known businesses attract exceptional lawyers to work as in-house counsel. Having the opportu- CA: What’s the most interesting case you’ve worked nity to work closely with highly skilled in-house lawyers on? makes our job both easier and more enjoyable.

PJC: For me it is not really one case, it’s the opportunity to work with a variety of clients on a range of topics and The Market with a diverse set of products, from advising on crafting CA: What are the current trends in affecting advertis- consumer surveys to substantiate claims coming to mar- ing litigation? ket, to instituting challenges before the NAD regarding competitor’s claims, to representing clients in class ac- NCS: For a good number of years, we have continued tion litigation that presents potentially significant expo- to see a proliferation of consumer class actions. Indeed, sure. recent statistics show these are the second-most prevalent category of class actions filed in federal courts, led RG: One of the most interesting cases I have worked on only by labor and employment class action complaints. was a recent putative consumer class action for our cli- We expect that trend will continue. Plaintiffs’ lawyers of- ent, The Procter & Gamble Company, involving flushable ten use Lanham Act and NAD decisions as blueprints for toileting wipes. Not only did the case involve interesting class action complaints, and are increasingly creative in and novel legal issues, but I also had the opportunity to coming up with novel allegations of falsity against com- draft multiple briefs on dispositive motions. panies for their marketing of products.

CA: What are the highs and lows of working in this SVE: With states rapidly passing consumer privacy laws area? here in the United States, there are many developments for our clients to stay abreast of, particularly in how SVE: One of the highs is getting to do a deep dive on prod- they collect, use, and sell consumer data. It is an excit- uct attributes. In order to defend or prosecute claims, you ing time to advise clients on privacy and cyber-security often need to understand how a product works and the and we have dedicated an entire section of our weekly science behind the claims. For an inquisitive mind, that is newsletter and monthly webinar to alerting our clients to just as much fun as mastering the legal issues. The only developments in that area. Likewise, claims concerning low I can think of is that sometimes these cases come the security around a product or breaches that access fast and furious, with the clients wanting preliminary in- consumer data are increasing and the law is developing junctive relief or even a temporary restraining order. This around standing, damages, and values of these litiga- Practice Areas Practice can require you to get your head around the product and tions. related complicated science very quickly. PJC: One current trend to watch is the increasing regu- DMC: It is always fun to see advertisements of the cases lation around testimonials and the use of influencers you are working on and to know that the work you do in marketing. The Federal Trade Commission and other can have or did have an impact on that advertisement. regulators are cracking down on the improper use of The lows are not necessarily unique to this practice area. influencers without disclosing material connections be- Document review can be tedious and time consuming, tween advertisers and the influencers they use. Another focus is on advertising directed towards children, with

87 www.chambers-associate.com Advertising litigation – Kramer Levin

increased regulation surrounding the Children’s Online PJC: Stay up to date on current legal issues in the field Privacy Protection Rule and privacy regulations more and attend relevant bar events. Not only will this come generally. in handy at interviews, it will help you begin your career with a useful knowledge base for the issues clients in the CA: What would you say the future of advertising law industry face. looks like? DMC: Take an advertising litigation class or one focused NCS: When I started practicing twenty-four years ago, on the Lanham Act if your law school offers it. And take advertising was almost exclusively television and print classes where you can hone your researching and legal based. It has evolved dramatically over that time, and writing skills. now those “traditional” media are less often the focus of advertising litigation. With the proliferation of digital RG: Try to take a course on advertising law specifically media, influencer marketing, experiential marketing, ar- or on class action litigation more generally. Federal class tificial intelligence, the “internet of things,” the terrain of action litigation has become increasingly common in ad- actionable advertising will continue to expand. vertising law, so having that foundation will put you one step ahead. PJC: In some ways, the future of advertising law is the future of privacy law. We are in an increasingly digital CA: What makes the field of advertising litigation law world with an ever-changing privacy landscape. Adver- unique? tising law in the future will have to account for not only who is making claims about a product, but to whom and NCS: Advertising litigation is often driven by the need for how those claims are directed, given the rapidly expand- injunctive relief – that is, to put a quick stop to a harm- ing data subject rights laws. ful advertising campaign – as opposed to monetary relief, which is often pursued as a more long term secondary CA: What personal qualities make a good advertising objective to a preliminary injunction or TRO. As a result, litigation lawyer? with the exception of consumer class actions, advertising cases often get litigated through a full evidentiary SVE: It’s important to be inquisitive – you have to dig hearing or trial, rather than settle. This is because they down into the science of the product and understand the are not primarily about monetary recovery, which is ex- claims inside and out. citing for a litigator. More often than not, advertising litigation often involves a good deal of science and expert PJC: A good advertising litigation lawyer is an effective subject matter, which makes for a stimulating and inter- communicator and is always willing to roll up her sleeves esting learning experience that varies from case to case. and get into the weeds of claim substantiation. CA: Could you describe the advertising law opportuni- RG: Advertising law is constantly evolving, so it’s impor- ties unique to Kramer Levin? tant for an advertising litigation attorney to be able to quickly adapt to new trends and changes in the law. NCS: Our firm has one of the nation’s premier advertising litigation practices. We represent many of the world’s HPM: Advertising litigators need to demonstrate a flex- largest advertisers in some of the most significant and ibility and creativity in working with clients to achieve the high-profile cases in the space. We have had extraordi- Practice Areas best result for their business. nary success litigating and trying advertising suits on behalf of our clients. At Kramer Levin, we are trial law- CA: What is your top piece of advice to students to help yers known for our skills in the courtroom. Unlike some them prepare themselves for a career in the practice places, you can count on getting real courtroom expe- area? rience before a judge or a jury, as well as regular work before the NAD and NARB, which makes ours a uniquely SVE: Be well-rounded in your studies. A case is best pre- exciting and rewarding practice. pared and presented when the entire team is bringing its best and you can take many classes in law school – obviously including false advertising, but also on discovery, trial practices, evidence, copyright, trademarks, damages, and civil procedure – to help contribute to a false advertising team.

88 www.chambers-associate.com Advertising litigation – Kramer Levin

Authors

Norman C. Simon Samantha V. Ettari Patrick J. Campbell Dayna M. Chikamoto Ryan Gander Partner, co-chair Special counsel Senior Associate Junior Associate Junior Associate

Harry P. Morgenthau Junior Associate Practice Areas Practice

89 www.chambers-associate.com Antitrust meets M&A – Freshfields

Antitrust meets M&A – Freshfields

Freshfields’ lawyers explain how the two practices combine

Chambers Associate: What is corporate law? CA: What kind of work is involved day to day? CR: Today I am supervising a due diligence project. The Camille Ranadive [corporate associate, New York]: We firm’s legal services center employs trained attorneys do a lot of cross-border public and private M&A, private who do a lot of due diligence for us, and then we review equity transactions, venture capital deals and joint- it. Additionally I’ll be doing due diligence myself and up- venture arrangements. Then there’s general corporate dating diligence reports. Thankfully there’s also a lot be- governance: dealing with boards and board appointees, yond diligence. I’ll be working on documentation to add and advising on board decisions. Our work essentially board members to an incentive program and reviewing involves working on documentation to achieve a client’s stock purchase agreement precedents. A lot my time is goal: that might be deciding to purchase a company or devoted to phone calls with other offices and clients. selling assets or a business division.

Paul Humphreys [corporate senior associate, New “You need to really understand the York]: Corporate and M&A are overlapping and the terms mechanics of the market you’re get used interchangeably. Corporate, I think of as en- analyzing: the product, players, how it compassing everything from M&A to capital markets to functions.” fund formation to more run-of-the-mill corporate maintenance, like record keeping, updating minutes, and corporate secretarial-type activities. M&A, I think of as buying JST: One thing I enjoy about antitrust law is that it’s high- and selling businesses or investing in businesses, and ly fact-intensive – you need to understand the mechanics that can be public or private transactions. Our practice is of the market you’re analyzing: the product, players, how primarily M&A and capital markets. it functions, the regulatory framework. You’re really digging into what underpins the market. In addition to the CA: What is antitrust law? legal and factual analysis, I liaise with clients to pursue Justin Stewart-Teitelbaum [antitrust counsel, Wash- transaction clearance and work directly with the regula- ington, DC]: Antitrust law is a legal analysis of competi- tory agencies – it’s their job to review the merger and our tion. There are two high-level areas of practice: the con- job to explain why the transaction should not be consid- duct side – legal assessment or litigation over business ered to present competition concerns. conduct which could be deemed anticompetitive – and M&A approval: regulators in the US and around the world PH: I manage deal teams, which usually consist of one or assess planned mergers to determine if their consumma- two junior associates, maybe a mid-level associate and tion might result in competition issues. The two key US a partner, depending on the size of the transaction. At enforcers are the Federal Trade Commission (FTC) and Freshfields 99% of what we do is cross-border, so often Practice Areas Department of Justice (DOJ). teams are not just based in the US. As a senior associate I draft, negotiate and solve outstanding issues. The part- Ilana Kattan [antitrust senior associate, Washing- ner takes a senior leadership role and would deal with ton DC]: Put simply, the antitrust laws aim to preserve any tricky relationship issues or very difficult negotiation competition. Antitrust lawyers advise clients on a wide points. range of issues, including on mergers, agreements with competitors, and monopolization. We advise clients in the M&A context, in regulatory investigations and litigation, “One of the great things about and in private litigation. We also provide advice to clients corporate practice is that it’s very on antitrust compliance. people focused.”

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CA: What is the difference between junior-level work issues might arise in order to give a realistic deal timeline and partner-level work? to the client. The worst thing to do would be to assume CR: We all work together all the time, on an hourly ba- there are no competition issues and that it’s going to be sis, not just daily. We’re constantly in each other’s offices. a quick deal process, only to find out you have to do an One of the great things about corporate practice is that HSR [Hart–Scott–Rodino] Act filing – that can delay a it’s very people focused – you don’t just bury your head deal by months, if not years. in research and not surface for hours. As a junior, you’re expected to really get into the details: if you’re doing dili- IK: Our roles fit together like puzzle pieces. The corpo- gence on a company, you need to understand everything rate team organizes the strategy for large M&A deals about them and tell the partner everything they need to and shepherds the process from origination of the deal know about that company. They can then condense that to closing and beyond. The antitrust team works closely into a client-friendly version. with the corporate team, assessing the antitrust risks of the deal and obtaining antitrust approvals for the deal. PH: Juniors do a lot of diligence work – reviewing contracts and other key documents – and draft red-flag re- PH: The antitrust team also provides training for the ports for the client, which highlight problematic legal M&A team on potential antitrust issues that can arise and commercial issues and recommend what to do about during a transaction. them. Juniors also manage the global diligence team, which for our global practice usually means teams in some locations where we rely on outside counsel. Junior “We are getting a lot of questions about associates do not only do due diligence. At Freshfields, how certain political events will affect they will be involved in preparing first drafts of transac- antitrust enforcement.” tion documents. We also involve our junior associates in the firm’s business development efforts, so you may find a junior preparing a presentation for a client. Our part- CA: What would you say about the future of M&A and ners often involve the juniors who have done the work in antitrust practice? the presentation to the client as well. JST: The proliferation of antitrust law and regulatory agencies around the world means the field will continue JST: As you move up in seniority you become more fo- to grow. As more jurisdictions come into play and more cused on the tactical and strategic implications of issues antitrust laws are introduced, trying to comply with them arising from diligence. For example, junior attorneys of- all can be complex. There may also be an increase in pri- ten conduct factual research and analysis and become vate antitrust litigation, in particular outside of the US. experts on an area of the matter or the market. Then as a team we’ll set the strategic course of action. CR: We at Freshfields see M&A becoming increasingly global and cross-border. US companies are realizing that they have to expand beyond the US to stay competitive “Our roles fit together like puzzle and relevant. It’ll be interesting to see what the next few pieces.” years bring with Brexit and the new presidential administration in the US, but we have a positive outlook that CA: How do the antitrust and corporate teams work M&A will continue to grow. 2016 didn’t quite keep up with together? booming 2015, but it almost did. As clients become more PH: Almost all transactions we work on in the US involve global, they need law firms that have a global presence antitrust filings, as the threshold for making a filing is and we have offices around the world that work together very low compared to the size of transactions on which on a daily basis. we work – so our antitrust people are almost always involved. IK: We are getting a lot of questions about how certain political events will affect antitrust enforcement. For ex- Practice Areas Practice JST: The corporate team is very aware that antitrust fil- ample, how will Brexit affect competition law in Europe? ings and review are often an important aspect of getting How will antitrust enforcement change under the Trump a transaction closed – thus we liaise closely on various administration? Despite this uncertainty – or in some cas- aspects during transaction consideration and after sign- es, because of this uncertainty – companies have been ing; often we’ll look at the antitrust considerations of a proposing a large number of deals over the past couple transaction before even discussing various other parts. of years that raise significant and complex antitrust issues. This merger wave likely will continue. CR: As soon as we’re aware of an M&A deal we get the antitrust team involved to understand what competition

91 www.chambers-associate.com Antitrust meets M&A – Freshfields

PH: The regulatory landscape changed a lot for our cli- These trainings not only allow for associates in the US to ents after the financial crisis. Now with the Trump admin- have a handle on the approach to antitrust issues outside istration many of those new regulations may be removed. the US, but also allow associates to get to know their col- That theoretically paves the way for more consolidation leagues on a personal level. These relationships continue and merger activity. But while things are in limbo, eve- to be developed as associates become more senior, with ryone may remain in a wait-and-see mode. In particular, trainings scheduled each year for mid-level associates in-bound M&A from places like China may wane until the and senior associates. Trump administration’s policies are better understood. CA: What’s unique about Freshfields’ antitrust and The Obama administration was very active in looking at M&A teams? M&A deals from an antitrust perspective – they were will- CR: Our corporate team is small – it has about 20 associ- ing to fight against deals they believed were anticom- ates and just a handful of partners, so it’s very intimate. petitive and some fell apart. That may change under the We all know each other very well and work with everyone Trump administration. There is a lot of talk about renego- closely. But at the same time we have the resources of a tiating trade deals – that will affect what foreign invest- large global law firm, so it’s the best of both worlds. ment will look like for cross-border businesses and what type of investments non-US buyers are able to make. An- JST: Freshfields is considered to have the best antitrust other key trend for businesses in developed economies practice in world, but the team doesn’t feel overly big or is the replacement of individual labor with intelligent impersonal – either locally or globally. For example, the machines. That will impact productivity but also change Washington team is not particularly large compared to the labor force, as workers no longer need to be qualified many other US antitrust practices – the team is close knit. just to put stuff together but rather to be someone who, for example, develops software. It’ll be interesting to see PH: We don’t think of our international network in the how that drives consolidation, and how it creates oppor- sense that we would say, ‘Oh, we have 15 people in Mi- tunities for businesses. lan, who handle Italian law issues.’ I think of Milan as a partner named Luigi Verga, who I’ve worked with on cross-border deals on multiple occasions. We don’t just “Summer associates are able to spend outsource non-US issues to a “network” office. We are two weeks in a foreign office after their one global firm, and we work incredibly hard to encour- time with us in the US.” age internal networking and to build actual relationships with colleagues around the globe.

CA: What particular opportunities are available to an- We want our clients’ experience with the firm to be the titrust and corporate juniors at Freshfields? same in Italy as it is in New York. We achieve this through JST: There’s definitely the opportunity for international things like global conferences, which start with ‘Career travel – the work we do has a lot of travel built in. Sum- Milestones’ training for associates in their first and sec- mer associates are able to spend two weeks in a foreign ond year, and sector group conferences as you go along. office after their time with us in the US. Training also The end result is that we know the individuals with whom happens internationally – once or twice a year there is an we work, and we actually like working with one another. antitrust training conference somewhere abroad. I have This is a huge benefit for clients as it improves efficiency also been on a secondment to London and that has made and ensures the global team – not just the lead partner Practice Areas me feel very close to the people in our team around the and lead associate – is committed to helping the client world. I know them, they know me, and we work together achieve its goals. very closely. The commitment to trainings and secondment to other offices shows the firm’s commitment to its It is not uncommon for associates from our offices out- unified network approach. side the US to visit the New York office on a vacation or personal trip to the US to meet in person someone with CR: It’s good to go abroad and be there on the ground, whom they have worked. I just don’t think that is so com- as you just can’t get as much done over the phone or by mon at other firms, and I believe that is a real testament email as you can when you’re in the room. Often juniors to the culture of collegiality across borders that we strive are the ones to travel to foreign offices for closings etc. to build and maintain.

IK: One of the best things about Freshfields is the firm’s CA: What’s your advice for law students wanting to focus on training. Several times a year, the junior associ- succeed in these areas? ates in our antitrust team travel to Brussels from around JST: In terms of seeking positions at law firms, I recom- the world to attend training on particular antitrust topics. mend that you demonstrate your interest in each specific

92 www.chambers-associate.com Antitrust meets M&A – Freshfi elds

fi rm. That doesn’t just mean knowing how many offi ces CR: Take law school classes that are practical: I took or associates we have, but also understanding the type seminars on ‘the art of the deal’ and general M&A which of work we do. We don’t expect you to be an expert on it really gave me exposure to what corporate work is and during the interview process, but make sure you’ve done made me familiar with certain terms. M&A seminars giv- your homework – and if you want to know something then en by practitioners are most useful, as they give you a make sure you ask a question. Also, in the interview, try taste of what corporate practice is really like. to showcase your interests and personality rather than simply reciting talking points.

Authors

Camille Ranadive Paul Humphreys Justin Stewart- Ilana Kattan Associate Senior Associate Teitelbaum Senior Associate Counsel Practice Areas Practice

93 www.chambers-associate.com Antitrust

Antitrust

In a nutshell discovery. This requires producing all the relevant Antitrust attorneys advise clients on whether their busi- documents and conducting depositions about liability ness practices comply with regulations domestically and and damages. abroad so that markets function effectively on the basis • Apply for summary judgment. If summary judgment is of fair and open competition. In doing so, they under- denied, attorneys prepare for trial, which involves de- take a broad range of different legal activities, including termining what evidence and depositions to use and litigation, government investigations, merger advice and whether they will be admitted, drawing up the exhibit counseling. list, and deciding what sort of discovery or motions to push for. Within litigation, generally there are cases alleging im- • Go to trial. Handle post-trial steps. proper single company conduct and those alleging anti- • Attorneys for plaintiff conduct due diligence before competitive agreements or collusion among two or more filing a complaint, oppose motions to dismiss, defend entities. The former refers to claims against a single enti- class action certification and oppose summary judg- ty for monopolistic conduct, such as predatory pricing or ment. abuse of monopoly power. The latter refers to an agreement or conspiracy among two or more entities that could include conduct such as boycotting, bid-rigging, Civil government investigation price-fixing and dividing markets or customers. Many of • Receive Civil Investigative Demand (CID) from the Fed- these cases are brought by a class of affected customers eral Trade Commission or Department of Justice, re- or consumers. Both types are private and civil. questing documents. State attorneys general can also initiate investigations. Government investigation, or enforcement, can be • Negotiate with the government to narrow the catego- brought as a civil or criminal proceeding. Civil enforce- ries of violations, limit the bounds of discovery and win ment involves investigating companies for certain more time. conduct, asking them to change their behavior, and • Produce the requested documents, ensuring those sometimes fining them. Criminal investigations revolve provided comply with the government’s demand. Jay primarily around cartels and price-fixing, and carry steep Srinivasan of Gibson Dunn describes this portion as criminal penalties. capable of being a “massive implementation effort” in larger cases. Merger advice (often called merger control) is another • Negotiate and maybe give interviews to the govern- big piece of antitrust work, whereby attorneys shepherd ment while waiting for its decision.Depending on the their client through major regulations associated with three possible outcomes, attorneys close the investi- M&A transactions, which generally result in a greater gation, negotiate, or defend the client in court or be- market share, the likely elimination of competitors and fore an administrative law judge. a greater risk of monopolistic conduct. Counseling involves providing clients with advice about their current Practice Areas and future business practices, such as co-marketing or Criminal government investigation distribution. • Receive grand jury subpoena or FBI warrant. • Conduct investigation into possible wrongdoing. • Produce materials requested by the subpoena or war- What lawyers do rant. Civil litigation on the defense side • If evidence suggests possible wrongdoing, counsel cli- • Receive complaint and file for motion to dismiss. This ent on strategies to defend against a possible charge can often go through several rounds, as the claimant or advise on possible plea arrangements. amends the complaint. • Client decides whether to fight or plea. If the latter, • If working on a class action, attorneys conduct ‘class’ negotiate plea agreement (including scope of charge discovery, during which they work with experts to at- and fine amount). tempt defeating class action certification. They will • Enter into a plea agreement. depose the experts and file and defend their reports. • If negotiations fail and the client does not enter into • If class certification is granted, or if the case was never plea, or chooses to fight the charge, attorneys will go a class action to begin with, lawyers conduct ‘merits’ to trial.

94 Antitrust www.chambers-associate.com

Rankings in Chambers USA • Depending on the government’s response to the HSR, lawyers wait, go ahead with the merger, agree to a consent decree, or defend the client in an injunctive Top Ranked trial or administrative hearing. Alston & Bird Cleary Gottlieb Steen & Hamilton Cravath, Swaine & Moore Davis Polk & Wardwell Realities of the job Dechert • Attorneys must know how markets work, how they are Dorsey & Whitney defined and how different forces will affect them. You Gibson, Dunn & Crutcher don’t need to have studied economics as an under- Kirkland & Ellis graduate but it will certainly help if you have. Latham & Watkins • The Sherman Antitrust Act of 1890 and the Clayton Mayer Brown Antitrust Act of 1914 are the body of law most antitrust Morgan, Lewis & Bockius attorneys work with and which forms the foundation Ropes & Gray Skadden, Arps, Slate, Meagher & Flom & Affiliates for most state antitrust laws. White & Case • Legal precedent plays the largest role in antitrust mat- WilmerHale ters. Lawyers must know their case law, especially US Supreme Court decisions, and the issues that have and Highly Recommended have not been resolved. Arnold & Porter • Even the smallest antitrust case can take two to three Axinn years to make its way through litigation. If it’s only a Baker Botts two-party case of smaller companies, it could still take Cahill Gordon & Reindel two years or more. Choate Hall & Stewart Because the cases tend to be large and high-profile, Covington & Burling • Crowell & Moring young associates often have to share responsibility Freshfields Bruckhaus Deringer among a larger team. If the case is big enough, howev- K&L Gates er, associates may get an opportunity to second-chair King & Spalding depositions. Morrison & Foerster • Discovery is a crucial part of the litigation process and Munger, Tolles & Olson is document and time-intensive. Associates will play O’Melveny & Myers a key role in document review and become integral Paul, Weiss, Rifkind, Wharton & Garrison members of the team, because nobody is more valu- Reed Smith able to litigation than those who know the documents Seyfarth Shaw well. Shearman & Sterling Sheppard, Mullin, Richter & Hampton • The stakes in criminal cases are higher than in civil Sidley Austin ones, since there is more potential for individual ex- Simpson Thacher & Bartlett posure. Public companies will tend to plead if there is Sullivan & Cromwell a substantial basis for criminal charges, since trial will Thompson & Knight carry significant risk and uncertainty. Vinson & Elkins • The DOJ, the only agency that handles criminal mat- Weil, Gotshal & Manges ters, has historically lost more than half its cases. Ju- Willkie Farr & Gallagher ries are very particular in applying an exacting burden Wilson Sonsini Goodrich & Rosati of proof on the government. Recent Supreme Court Winston & Strawn decisions have also been favorable to antitrust de- For more detail on ranking tiers and locations, visit fendants. www.chambers.com • Whereas the antitrust section of the DOJ is a small part of a large department, the FTC is an independent Practice Areas Practice regulatory agency and handles some matters the DOJ doesn’t, such as unfair competition and advertising. Mergers Attorneys will have different experiences with people • If the merger meets one or more of the government’s at both the DOJ and FTC, based on the different rules enumerated thresholds, attorneys file a Hart-Scott- and procedures of each, as well as on personalities. Rodino form (HSR), indicating the intent to merge. • Generally speaking, antitrust work on mergers will in- • Conduct due diligence and spot issues. crease when the economy is good, while a downturn • Determine the likelihood that the merger will be chal- will bring more litigation work. lenged, reviewed or investigated.

95 www.chambers-associate.com Antitrust

• David Wales of Jones Day explains how “antitrust is • Recent examples include Google’s $5 billion fine for really quite cyclical, so moves from periods of intense violating antitrust law concerning its Android oper- activity to moderate activity. By nature, antitrust issues ating systems. Equally, scrutiny continues to centre are company issues, so with that comes the client de- on Facebook for their handling of data and potential mands so that you sometimes have to work night and privacy violations following the Cambridge Analytica day to get good results.” scandal in 2018. • Antitrust will also be affected by intellectual cy- • The United Kingdom’s departure from the EU also al- cles and en vogue economic theories. Daniel Swan- lows the UK, as indicated, a more robust opportunity son of Gibson Dunn says: “We’re currently in an to pursue antitrust cases against dominant US tech upswing of thought calling for greater activism, interna- behemoths. tionalization, and coordination in jurisdictions.” • Wedded to these concerns is the emergence of ‘killer • Antitrust is renowned for its constantly evolving na- acquisitions in the tech sphere. Defined as an acquisi- ture, as David Wales says: “It’s not about black and tion from an established company acquiring a smaller white answers, so you have to be someone that embrac- start-up, these strategic buys ostensibly eliminate es ambiguity. You have to be able to take a vague area of the competition from an innovative competitor. Both the law and give clients practical advice.” Google’s acquisition of Fitbit Inc. and Apple’s acquisi- • Steven Newborn at Weil, Gotshal & Manges says: tion of Shazam are pertinent examples. “One of the advantages of working on mergers is that • These types of acquisitions are also particularly prev- they have a beginning, a middle and an end and they alent in the healthcare space, too. Experts suggest normally last only a few months. I find it very attractive the consolidation of the US pharmaceutical industry, to be able to have a decision within a relatively short pe- rather than promoting, is in fact stifling competition. riod of time.” Yale University professors penned a paper last year noting 6% of pharma acquisitions are considered to be Current issues “killer,” thereby monopolizing an industry. • COVID-19 had created a cautious economy, where • The last few years has also seen a recalibration of transactions have slowed and firms are directing their the geopolitical landscape. Coupling the emergence junior lawyers more into crisis mode, putting more of isolationism and nation-state politics, antitrust will resources on litigation and bankruptcy. As such, anti- be a significant election issue in the 2020 Presiden- trust work is slowing while companies lose their appe- tial elections with many Democratic nominees seek- tite for mergers and look after their cashflow. The tech ing tighter regulation on the dominance of tech-based transactional market remains a buoyant sector, seeing monopolies. greater demand for its products during lockdown. • In contrast, President Trump has increasingly criti- • An ever-evolving landscape has seen conventional cized the European Union for imposing antitrust fines antitrust understandings change as we become in- on US tech giants. Trump notes that monetary fines creasingly integrated online. Regulation of a digital shouldn’t be levied against the likes of Facebook and economy is, and will be, a contentious battle ground in Apple by an outside political entity. the years ahead. • Echoing themes of isolationism, Trump’s Huawei ban • The impact and control of data will also be a focal poses many interesting challenges and complications point. Tech giants are under the spotlight for their for international antitrust enforcement. handling of privacy, protection, and misinformation. • Finally, as the world becomes further defined by its Pro-consumer and innovative models of fair competi- commitment to decarbonization and a greener econ- Practice Areas tion will be crucial as we become further defined by omy, companies working together to fight climate the digitized age. change will need to be cognizant of existing antitrust • The Federal Trade Commission (FTC) and the Depart- laws. ment of Justice (DOJ) have both tech companies in their sights. The FTC has committed to closely monitoring and maintaining fair competition of technology, specifically with regards to the acquisition and collection of data.

96 Appellate www.chambers-associate.com

Appellate

In a nutshell brief, though most clients still hire appellate lawyers In simple terms, appellate law is a stage of dispute reso- based on their oral argument capabilities. As Sullivan lution. More specifically, it involves handling cases on notes, “it can take longer to write a shorter brief. It is a appeal, but the best appellate practices think of it more skill to argue in a more succinct and attention-grabbing broadly and consider sophisticated legal analysis, strat- way,” one which must be developed by aspiring appel- egy and issue identification – even at the trial level – to late lawyers. be part of their core function. Appellate lawyers, though • Prior to an oral argument, appellate lawyers should go all experts in appellate advocacy per se, often come through one or more moot court sessions in prepara- to specialize in different areas. This includes the likes tion for the real thing – the extra preparation may go a of antitrust, state and federal taxation, corporate law, long way with appellate judges. punitive damages, telecommunications, labor and em- • “The reality is that appellate work is far more people- ployment, environment and intellectual property. “To be centric than most assume,” Carter Phillips of Sidley a good appellate lawyer is to have a set of skills that cross- Austin says. “You’re going in as part of a much broader cut substantive areas in the law,” according to Kathleen team, and if you’re successful it’s because you have the Sullivan of Quinn Emmanuel Urquhart & Sullivan. They right skills to work effectively with others.” will also often have a court-specific focus, developing • Appellate law is a highly intellectual area that involves expertise in state appellate courts, federal courts of ap- cutting-edge legal issues. Phillips adds: “Those who peal, state supreme courts, or the US Supreme Court. practice appellate law tend to have remarkably strong credentials coming out of law school.” According to Kannon Shanmugam of Paul Weiss, the role of an ap- What lawyers do pellate lawyers is to “research legal questions, but also • Evaluate the issues in the case. policy arguments. It is important to develop these skills • Review motions filed by lawyers in trial court, because early in your career.” they tend to identify the important issues. • Associates must enjoy spending countless hours do- • Read the trial transcript. ing research and crafting written statements. This • Work with trial lawyers to understand the facts of the work decreases with seniority. case. • “If you like to play with language, prose and sentence • Conduct legal research to assess the strength of the structure, if you consider writing to be an art, then ap- issues raised at trial. pellate law is a great opportunity to immerse yourself in • Write an ‘issues memo’ after the research and analysis, that,” says Tager. and consult with the client and trial lawyers to identify • There is no law stating that you have to do a clerk- the most promising issues. ship in order to become an appellate lawyer, but “it’s • Write the brief. This process takes time. much easier and a natural progression for those who • Share the brief with the client and trial counsel; incor- have,” Phillips tells us. Working in government in an porate their comments and reactions. appellate division can also be beneficial. Shanmugam • Continue to refine the brief until it must be filed. elaborates: “A clerkship is important. I don’t think it’s a • Present the oral argument. requirement, but having done an appellate clerkship is • Manage post-hearing steps. useful to understand how appellate courts operate and their internal mechanisms and structures.” • Courts around the country are constantly issuing de- Realities of the job cisions that appellate lawyers need to keep up with, • Oral argument “is an incredibly adrenaline-fueled ex- though practitioners can generally limit their focus to Practice Areas Practice perience,” says Evan Tager of Mayer Brown. “It adds decisions made in the courts or areas of law that apply spice to your ordinary research and writing routine.” to their practice. Practicing appellate lawyers often note this as one • “It’s useful to develop a wider array of litigation skills in their favorite parts of the job, with Sullivan noting: the first year or two,” according to Phillips. Seth Wax- “There can be nothing more thrilling than distilling an man of WilmerHale confirms:“I could never have been entire appeal down to oral argument an appellate lawyer the kind of appellate lawyer that I am without putting will make.” together cases from scratch, learning how to establish • It is, however, a relatively small part of the case. The facts in a trial record and developing a facility for never strength of the appeal rests on the shoulders of the doing the same kind of substantive case twice.”

97 www.chambers-associate.com Appellate

Rankings in Chambers USA clinics to assist pro se litigants: The Appellate Self- Help Clinic and the Federal Pro Se Clinic. • In Texas, a trend has been observed: The state’s lead- Top Ranked ers are increasingly turning to appellate litigators to Gibson, Dunn & Crutcher Kirkland & Ellis fill top government legal positions. Former Texas As- Sidley Austin sistant Solicitor General and former General Counsel WilmerHale to the Texas Attorney General, Jimmy Blacklock was sworn in to the Texas Supreme Court. Another alum of Highly Recommended the Texas Solicitor General’s office, Brantley Starr, was Akin Gump Strauss Hauer & Feld appointed the new Deputy Attorney General for Legal Arnold & Porter Counsel. These big-shot appellate litigators were ap- Jenner & Block pointed because of their ability to handle the thorniest Latham & Watkins of legal issues: an ability which had been honed thanks Mayer Brown to the complex issues generated within the Appellate Morrison & Foerster Munger, Tolles & Olson Bar. O’Melveny & Myers • Since his inauguration, Donald Trump has appointed Orrick, Herrington & Sutcliffe 50 new federal appeals judges. Twelve of those were appointed within the first year of his presidency – a For more detail on ranking tiers and locations, visit new record (for context, President Obama appointed www.chambers.com three). Five of the 13 appeals courts have a majority of judges named by Republican presidents – the balance tipped that way in the Third Circuit when Trump’s • Another key difference between appellate law and nominee Paul Matey was appointed to fill the last va- litigation is the considerable shift toward answering cancy in March 2019. questions as opposed to asking them. This is done by “meeting the obvious questions head on in a brief, or being prepared to quickly and thoughtfully provide *Editor’s note: sample briefs and arguments are available answers to questions that judges ask during oral advo- at www.appellate.net cacy,” says Waxman. • Judges are human. They have predispositions and find Advice from the appellate law gurus it difficult not to view a case through the lens of their biases, often frustrating even the best-laid plans – al- Carter Phillips, partner and former chair of the firm’s ex- though this is less of an issue in the Supreme Court ecutive committee, Sidley Austin: compared to the lower court levels. “If you’re coming out of law school, get a clerkship with an appellate judge because there’s no better way to un- Current Issues derstand the process than to spend a year on that side of June 2020 the ledger. After that, the critical mass of the practice is in • In an economy preparing for crisis, we’re starting to Washington DC, so you should start out there if you really see an uptick in all litigious activity. Appellate work want to be an appellate lawyer.” is likely to see growth as bankruptcy litigation cases Practice Areas develop. “It’s also good to spend time in government, as it’s a great • Appellate lawyers are being brought onto cases at proving ground for developing appellate skills. And if you increasingly earlier stages such as immediately after can land a spot in the Solicitor General’s office, you will jury verdicts or even when winning a case starts to have the opportunity to argue before the US Supreme look unlikely. Some clients are even requesting that an Court – and that’s pretty heady stuff.” appellate lawyer be staffed from the get-go, with the purpose of keeping an eye on potential appeal strate- Stephen Shapiro, partner and founder of appellate gies. Specialized appellate lawyers have also become group, Mayer Brown: increasingly common in recent years. • Numerous new ‘pro se’ or ‘pro bono’ appellate pro- “The road to success in appellate law starts in law school, grams have been developed throughout the country where interested students should work on a law review and over recent years to tackle the influx of self-repre- take part in the moot court program. Most important, a neo- sented civil litigants in appellate courts and to improve phyte appellate lawyer should read and listen to as many of efficiency in this regard. Public Counsel operates two the best briefs and oral arguments as possible.”

98 Appellate www.chambers-associate.com

“Young appellate lawyers learn a great deal from the edits of senior lawyers working on their draft briefs. They should keep those edited briefs in their files for future reference; I still have some edited drafts from my mentor, Judge Frank Easterbrook.”

Seth Waxman, chair of the appellate and Supreme Court litigation practice group, WilmerHale:

“You certainly need to have a real affinity for quiet solitary work. It’s not the life of the academic, but some aspects are much more solitary than many other types of law practice. I always have my door open and I spend a lot of my day wan- dering in and out of colleagues’ offices, as I tend to work better in a collegial setting. But at the end of the day, when you’re talking about writing or preparing a brief, or preparing to argue a case, there is no substitute for spending a long time on your own with the door closed and focusing your mind in a concentrated way. To be fulfilled and successful as an appellate lawyer you have to have an appreciation for quite a different way of working.” Practice Areas Practice

99 www.chambers-associate.com Banking and finance – Weil

Banking and finance – Weil

Finance is the bedrock of all commerce. We caught up with the experts at Weil to learn about this giant, complex area of law.

What are the main responsibilities of an attorney work- the very beginning. It’s also an area of law that involves a ing in the banking & finance sector? lot of holistic analysis. Typically, a client comes to us with a transaction they want to implement or problem they’re Vynessa Nemunaitis: The banking and finance attor- looking to solve. As a banking & finance associate, you neys work to negotiate loan facilities (for borrowers or have to carefully analyze the various parts of the client’s lenders) for working capital needs or in connection with debt documents to figure out all of the relevant limita- an acquisition or leveraged buyout. We also work with tions that might apply and, together with the partner, ad- our restructuring group on debtor-in-possession loans vise the client on the ‘art of the possible.’ It’s a rewarding or other related liability management transactions. As practice in that you really do always feel like an integral you would expect, there are a number of documents as part of your client’s business. part of closing a banking transaction, as well as diligence to be conducted. A large part of our role is learning the Also, don’t let the word “finance” scare you! You do not particulars of our clients’ businesses and then ensuring need any accounting or finance background to be a suc- the flexibility exists in the debt documents to operate on cessful banking & finance attorney. Having that skillset a go forward basis. There is also just the nitty gritty of can certainly be helpful along the way, but not a prereq- closing a deal which requires a lot of coordination and uisite by any means. You’ll learn what you need to know organizational skills. on the job.

Jacqueline Oveissi: The beauty of being a banking & fi- VN: As a banking & finance lawyer, you have to remain nance attorney is that you remain involved with clients up-to-speed on the broader market and economy be- throughout the life of the credit facility. For many trans- cause the loan market is constantly evolving and directly actional attorneys, the bulk of the work ends when the impacts our clients’ financing needs. This becomes deal closes. For a banking & finance attorney, this is just especially important during a financial crisis or global the beginning of a long relationship. Most of a banking event such as the current COVID-19 pandemic. A large & finance attorney’s responsibility involves advising our part of our role is guiding clients on market practices and clients on navigating their credit agreements. broader considerations in addressing compliance with their debt documents in uncertain times. I am always When the economy is strong and our clients are in the learning something new in our practice and stretching market for opportunistic new deals, we’re advising them my skillset, which is what I find rewarding and interest- on what’s market, key risks to be on the lookout for and ing about our practice. how to best structure the deal to ensure a successful debt syndication. When the economy is down, we’re re- Who are some of the main players/clients/parties you Practice Areas viewing loan documentation to figure out creative solu- interact with day-to-day? tions to address defaults, provide covenant relief, and extend the liquidity runway. In that sense, the work of JO: When representing borrowers, you interact primarily a banking & finance attorney is ‘hedged’ in that there’s with the chief financial officers, chief executive officers a need for financing at all points in the economic cycle. and other executives that are involved in the day-to-day The work is there, it’s just the context in which the financ- business operations and strategy, and will be involved ing is being implemented that changes (e.g., M&A vs. DIP with the credit facility on an ongoing basis. For sponsor- financing). backed deals, you are also interacting closely with the private equity sponsor and helping them to ensure their How would you describe the nature of the work? Cer- financial models and business plans are properly reflect- ebral? Administrative? Procedural? ed in the credit documentation. On the lender side, you interact with managing directors, vice presidents and JO: I would describe the nature of the work as substan- associates across all levels of a given financial institu- tive and business-oriented. Associates, starting from the tion, including investment bankers, syndication desk, risk junior level, are involved in every aspect of the deal from management and compliance teams, among others.

100 Banking and finance – Weil www.chambers-associate.com

VN: Our practice is a team sport, which includes work- lives with providing our clients with critical guidance ing with management teams and other executives, but during this stressful time. Needless to say we have been also with other legal teams, financial advisors and tax incredibly busy! Our clients are facing similar questions advisors. We are typically coordinating closely with law- and issues, but having an in depth knowledge of their yers in other practice groups across Weil. One benefit of particular business and loan documents is critical to pro- working at Weil is that we have an incredible amount of viding accurate and constructive guidance. As expected, resources and breadth of expertise we can call upon as we are working on a number of new restructuring and needed for our clients. Our colleagues are ready to jump liability management matters, which require heavy in- into whatever issue we need assistance with and always volvement from the banking and finance attorneys. happy to help. JO: The largest impact currently is the effect that COV- In terms of lifestyle and hours, what can a junior asso- ID-19 is having not just on the loan market, but the en- ciate working in banking & finance expect? tire global economy. The situation is fluid, as companies struggle to navigate what is uncharted territory, and our VN: For any transactional practice, the hours on a day- role in advising our clients on credit agreement implica- to-day basis will depend on the types of transactions tions has never been more important. The most immedi- you are working on. If it is an acquisition financing, the ate impact we’ve seen is companies across various indus- timing of the larger M&A closing will dictate when the tries proactively drawing on their revolvers to shore up financing needs to be put in place. If it is a restructuring, liquidity due to the uncertain impacts that COVID-19 will the timing of the bankruptcy filing will dictate when the have on their respective businesses. We have been advis- DIP financing needs to be put in place. But that is what ing our clients on conditions that must be met to make keeps it interesting! What is critical is that we work as a such revolver draws and the impact on financial covenant team and are in constant communication so we can look compliance. In addition, we are working closely with our out for each other. Our timing and deadlines are heavily clients to evaluate the impacts of COVID-19 on EBITDA dependent on clients and managing the deal process, as and related adjustments, and guiding them in their finan- partners we work to balance those with the availability of cial reporting, particularly as audits are delayed. our associates and providing a variety of training opportunities. Weil does not have a billable hours minimum, we What was your role on the latest deal/case you worked on? are focused more on staffing our deals with the right mix of experience and opportunity to give everyone a mean- JO: One of the more recent deals I worked on was to fund ingful balance of work. an emergency bridge loan to a distressed company that was running out of liquidity. There was a lot at stake for JO: Generally you have a fair bit of control over when doc- the company and we had to get an entire financing done uments get drafted and how and when they’re negotiated. in a fraction of the time that we would normally have for Emergencies of course can come up (which is the case in a “regular way” transaction. I was the senior associate on any job), but that’s certainly not the ‘ordinary course.’ Also, the deal and was responsible for documenting and ne- remote working has become more accessible and more gotiating the bridge loan, including carefully reviewing seamless than ever before and many firms, like Weil, have the existing credit documentation to ensure the bridge adapted and enacted work from home policies. loan was structured in the proper way (with partner guidance). I also managed a team of junior associates and In my experience, the key as an associate is to establish helped them divide and conquer the work in a fair man- a reputation of being responsive and responsible – once ner to ensure everything got done efficiently on a tight you’ve built that foundation and trust, balancing your time frame and to ensure a balanced workload across work-life becomes significantly easier. Being proactive, the team. It was a difficult transaction, but was a testa- communicating frequently and setting boundaries when ment to the value that Weil places on teamwork and en- necessary can also all go a really long way in effectively suring that associates have the support they need on a managing your time and expectations. given transaction. Practice Areas Practice

What impact is the current political/economic climate VN: As a new partner, I am transitioning in some respects having on the market? to handling more administrative and high level aspects of a transaction. Although as a senior associate the work VN: The impact of the COVID-19 pandemic has of course load is very similar, it has been an exciting time taking on been substantial and there still remains a lot of uncer- more responsibility. I value now more than ever the train- tainty. Weil has been proactive with respect to our own ing and mentorship I received as an associate, but also I steps to protect the health and safety of our lawyers and am thankful it does not stop once you are promoted! I still staff. At the same time we are balancing our personal

101 www.chambers-associate.com Banking and finance – Weil

have the same mentors guiding me through the tough What opportunities are unique to working at Weil, Got- questions and colleagues to support me. shal & Manges?

What is the most interesting deal you have worked on? JO: The number one thing that is unique to working at Weil is the collegiality and culture of the Firm, and par- JO: We work on lots of interesting deals. Sometimes ticularly in the banking & finance group. You can love the deals are interesting simply by virtue of being high pro- work you’re doing, but that’s only one piece of the puzzle. file (e.g. bridge financing for the Amazon/Whole Foods Having an incredibly talented team of bright and colle- deal that I worked on). Others are interesting because of gial attorneys supporting you along the way and helping their complexity, such as cross-border deals I’ve worked you through tough times is critical to job satisfaction as on involving complex guarantee and security packages an associate. At Weil, we leverage the wealth of knowl- around the world. edge and experience of our colleagues to provide the best advice to our clients, and this is encouraged at all VN: A large part of my practice is working on distressed levels at the firm. debt or bankruptcy related financings, including most recently for oil and gas companies and grocery store The firm’s commitment to diversity and inclusion is also chains. It is incredibly rewarding to work with a client unique. As a woman and a first-generation Latina, I have through that stressful time and help them come through never once felt treated differently at Weil because of it with a recapitalization that sets their business on a my gender or ethnicity. From day one, I have felt that my strong path forward. opinions are valued. It’s not just lip service at Weil. Diver- sity & inclusion has always been a core value of the firm. Where can new junior associates expect to be in five Indeed, the firm elected its most diverse partner class in years’ time? the firm’s history in 2020, with nine new women partners, three of whom are women of color. JO: In five years’ time, you can expect to be the senior associate on a given deal. You will be in charge of the initial VN: I completely agree with Jackie’s thoughts, especially draft of the credit agreement and related debt documen- during the current economic and global uncertainty, I am tation, take the lead on negotiations with opposing coun- incredibly thankful to be a part of the Weil family. I would sel, escalate issues for partner input and help advise also note that mentoring and training at Weil is a high clients, all with partner supervision. You will also be in a priority. Our practice development team works closely leadership role responsible for managing a team of jun- with the practices to make sure that all lawyers receive ior associates and paralegals to help you efficiently and the necessary legal and business training. Banking & effectively complete the transaction at hand and, in that finance, for example, hosts regular trainings tailored capacity, be expected to train the junior associates and towards junior, mid-level and senior associates, as appli- help them reap the benefits of the wealth of knowledge cable, as well as practice wide trainings. The banking & and experience you will have accumulated. finance group also has bi-weekly lunches for everyone to get together casually and to discuss developments in the VN: As a senior associate you will have gained all of the field, challenges on deals, etc. As a firm, we kicked off technical skills Jackie mentioned but also have built men- the Weil Business Academy program this year to formal- toring and training relationships with a variety of Weil at- ize training programs across practice groups, including torneys. Growing as a firm citizen, including participating in coordination with Columbia Business School. Practice Areas in firm committees and recruiting, takes time but as a senior associate you will have the opportunity to participate in those activities if that is an activity you are interested in.

Authors

Vynessa Nemunaitis Jacqueline Oveissi Partner Senior Associate

102 Banking regulatory – Clifford Chance www.chambers-associate.com

Banking regulatory – Clifford Chance

Behind the Curtain: Getting to Know the Clifford Chance Regulatory Group

What opportunities do you believe are unique to work- offices around the world and a robust international prac- ing at Clifford Chance? tice, Clifford Chance is unique in that we require a group dedicated to this function. Eric Bernstein, associate: Even among global firms, Clifford Chance’s international reach stands above the EB: As an incoming lateral, and after researching the rest. On any given day, I work on matters that touch mul- practice and meeting the team, I very much equated tiple continents. It is incredibly rewarding to work with a the regulatory group to a “think tank” within the firm team of colleagues based around the world; through this that developed the firm’s position on various US regula- type of international practice, you gain a valuable global tory issues, including new and novel questions as they business perspective arise. For me, this meant that the work would always be interesting. Particularly during periods of global tur- Jeff LeMaster, partner: I joined Clifford Chance as a moil, such as the current COVID-19 crisis, the ability to summer law clerk in 2005. In 2013 (and before becom- understand and analyze the actions of regulators is criti- ing partner) I spent several years working in our Hong cal to our clients. Additionally, I appreciate that the na- Kong office and learning takes place at an accelerated ture of the group’s work facilitates interaction with dif- rate. The cultural overlay for the practice of law causes ferent practice areas throughout the firm, which allows everything to effectively become new again. me to only increase my network.

Michelle Mount, clerk: Of course, the easy answer is MM: My methodology when vetting law firms was a bit Clifford Chance’s summer abroad opportunity. As a different from the typical rankings analysis. First, I de- summer law clerk, being able to spend two weeks in termined which firms have the most interesting regula- our Singapore office allowed me to forge relationships tory work. For example, who represented the largest with attorneys I may not have ever come in contact with international stock exchange during Brexit, or who rep- and learn how to navigate another office’s culture. Most resents the largest cryptocurrency brokerage from their of all, I was warmly integrated into office life. Office Singapore office? My research kept pointing to Clifford doors were literally and figuratively open and they wel- Chance. Second, it didn’t hurt that many of the firm’s comed our involvement. I also learned early on that client practice groups are ranked Band 1 by Chambers. expectations and preferences can vary widely across the globe, which was an invaluable skill I know will help me Describe the most exciting deal you have worked on? as I continue my career. JL: The most exciting deal, for me, was, interestingly enough, one I was assigned as a first year: I was work- “With so many offices around the world ing on the sale of a number of venture capital portfoli- and a robust international practice, os for an asset manager based in New York. The partner Clifford Chance is unique in that we on the matter was required to travel extensively dur- require a group dedicated to this ing that time, and the senior associate who was leading the deal relocated to our DC office. As a result, I be- function.” came the default client contact point in New York. The Practice Areas Practice client hosted a luncheon with almost all of the inves- What was it about Clifford Chance’s regulatory group tors in the transaction—the brokers, potential buyers, that interested you? and other counsel. Being the Clifford Chance represent- ative (and trusted to do so) among all of these incredibly Andrew Nelson, associate: Before joining Clifford smart and established stakeholders was equally nerve Chance as a summer law clerk, I worked for a govern- wracking and thrilling, and to this day remains one of my ment regulator which allowed me to better appreciate best memories from early on in my career. how law firms act as a trusted advisor to clients while they navigate complex legal frameworks. With so many

103 www.chambers-associate.com Banking regulatory – Clifford Chance

“I was tasked with drafting a between detailed legal analysis and brevity, and it’s not a comprehensive legal survey for skill that is taught in law school. I’ve found this focus on a multibillion-dollar fintech company.” clear articulation to be a rewarding part of my practice.

How would you describe the nature of the work? Cer- EB: Soon after I started at Clifford Chance, I was tasked ebral? Administrative? Procedural? with drafting a comprehensive legal survey for a multibillion-dollar fintech company to better clarify the US laws AN: Creative. In regulatory work we need to possess a and regulations applicable to one of their business keen understanding of why the client is pursuing a par- lines. The survey was part of a larger project that ad- ticular business goal. Most often the answer is intricately dressed similar laws and regulations in several other tied to the company’s overarching global strategy. Initial- global jurisdictions. The assignment involved consider- ly we identify how the project fits into the company’s big- ing the applicability of several U.S banking and consum- picture goals, then we problem-solve legal solutions to er protection laws to the business and how the business meet those goals without running afoul of the rules. could best comply with these requirements. I worked on a team with colleagues from Clifford Chance’s Tokyo, JL: From an overarching perspective, our work is almost London and Amsterdam offices to complete the project. exclusively cerebral in nature and, as a result, there is little that is routine. MM: When I was a summer law clerk, a large international bank asked Clifford Chance to give a presentation EB: Cerebral. Much of what we do requires us to con- on the potential regulatory and banking implications of stantly stay abreast of new information. We stay up to stablecoins. This was just after Facebook Libra launched date with the regulatory environment to assess what ac- and governments were still formulating their reactions. tions could impact our clients, and develop a wide-rang- Working closely with one partner, a handful of senior ing understanding of market practice to provide the best associates, and our design team in India, I was able to advice possible. conduct much of the legal research, finalize the presentation, and sit in on the panel as part of the presenta- What impact is the current political climate having tion. The panel discussion was then broadcast through- on surrounding regulations generally? out the bank’s international head offices. AN: Before COVID-19, the government was on a path to- What are the most important qualities of a junior as- ward embracing less regulation. There was discussion sociate joining the group? of rolling back the Volcker rule and alleviating its chill- ing effect on investment in the banking industry. In tan- JL: We give our junior associates a good deal of responsi- dem, the SEC was reconsidering some of its past regu- bility early on and engage them in business development lations. The SEC proposed changes to its Advertising from the beginning. As result, we look for juniors who Rules and opened a discussion on amending the defini- have the required “soft skills” and enthusiasm. Junior as- tion of “accredited investor.” After COVID-19, we are see- sociates, who bring their fresh perspectives, curiosity, ing the SEC’s (and everyone else’s) attention being pulled and enthusiasm to the team, play a valuable role. in a different direction.

EB: Because of the nature of our work, it’s important for JL: While the SEC continues to pursue enforcement Practice Areas an associate to be comfortable wearing many hats. Be- goals, its focus on facilitating capital formation seems to ing proactive and asking questions is critical; there will have been moved to the forefront, with the SEC seem- always be a new and unfamiliar legal issue. As soon as ingly providing daily proposals for streamlining the fund you think you have mastered it, you learn something else. raising process and solutions. Additionally, we have seen It’s what keeps each day exciting. the SEC be far more willing to meet with companies to discuss new products and lines and the legal issues surrounding products and lines and potential. I think this “It’s a balancing act between detailed current state-of-play at the SEC forces lawyers to take legal analysis and brevity, and it’s not a on a more commercial and business-minded role. skill that is taught in law school.” MM: The frequent rule making and legislation brought on by the COVID-19 crisis means that lawyers are play- AN: Much of our job involves clear concise business ing a quintessential role in interpreting these regulations writing. We distill regulations into the key points and and shaping new rapidly forming legal norms. From a meaningfully applicable language. It’s a balancing act regulatory perspective, it is interesting to see the busi-

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ness landscape changing and take part in navigating the JL: When I was applying to law school, I was told by a well- new legal issues that are emerging. seasoned lawyer that the law is a “jealous mistress.” As it turns out, he was exactly right. One of the most difficult parts of the area of law that I practice in, and the practice “The frequent rule making and of law more generally, is the time required to provide ex- legislation brought on by the COVID-19 cellent service and advice to clients. Easy determinations crisis means that lawyers are playing a simply are not possible on most occasions. Having said quintessential role in interpreting these that, it is the very same aspect of the profession (it’s complexity) that provides some of its most rewarding experi- regulations.” ences. Specifically, when you are able to navigate a client through a very difficult set of circumstances or provide What do you value most about the group? an alternative path forward for a client to achieve their desired result, it is exceptionally gratifying. AN: Camaraderie, especially now; I am constantly re- minded and grateful that we all get along so well. AN: The hardest part is definitely the pace. Much like There’s a great sense of mutual respect and trust, which drinking from a fire hose is difficult, keeping up with is something you don’t always see in the legal market. client demands when you work on dozens of matters at the same time can be a challenge. That said, our work EB: The camaraderie. Also, the clear personal investment is actually much more predictable on average than most that the partners have in the growth and development transactional work. Predictably busy is better than boom of associates. The other members of the group, partners and bust, in my opinion. In terms of the best reward: we and associates, are always willing to share their knowl- get to be on the forefront of the most interesting and edge and experiences, and that is invaluable for an at- novel questions of law and that gives us the opportu- torney new to the practice. nity to be a force in shaping market practice for years to come. Whenever I write something and I see it start JL: For me, without question, the most valuable aspect showing up in other peoples’ documents, that’s when I of our group is the varying perspectives of each team know I’ve made a difference. member. Generally, the issues that we are advising on are not black and white, but rather in somewhat of a grey Given this current situation and the restrictions we zone. With that mind in, I find that it is both extremely now have, what has made you appreciate this group useful and interesting to discuss these issues with mem- even more and the relationships you have? bers of the team to get the views of other regulatory specialists. EB: Everyone genuinely cares about each other’s well- being. Our weekly calls not only focus on the projects we What is the hardest part about the practice of law and are working on, but on how we/our families are holding what is the most rewarding? up given the challenges of the present moment. Even while working remotely, my colleagues have continued EB: The biggest challenge is staying on top of the often- to mentor me and demonstrate interest in my progres- changing legal landscape. The most rewarding is that sion at the firm. you are constantly building upon your knowledge and skills, and learning new things to always satisfy your in- AN: Again, we’re all very close, even outside of work. De- tellectual curiosity. In our area in particular, this gives you spite the social distancing orders, we’re still in daily con- color into how our financial system works and what lies tact and not just about whatever matters are active to- beyond the headlines. day. Despite how this sounds, the partners I work forare all close friends of mine – I was at Jeff’s wedding in Paris last year and I know far more about these people’s lives “When I was applying to law school, than I ever thought I would in an employer-employee re- Practice Areas Practice I was told by a well-seasoned lawyer lationship. They are true mentors and I wouldn’t be half that the law is a ‘jealous mistress.’ As it the lawyer I am today without their constant guidance turns out, he was exactly right.” and support.

105 Banking regulatory – Clifford Chance www.chambers-associate.com

Authors

Eric Bernstein Jeff LeMaster Michelle Mount Andrew Nelson Associate Partner Clerk Associate Practice Areas

106 Banking and finance www.chambers-associate.com

Banking and finance

In a nutshell Islamic finance: Muslim borrowers, lenders and inves- Banking and finance lawyers deal with the lending and tors must abide by Shari’a law, which prohibits the col- borrowing of money, and the management of financial lection and payment of interest on a loan. Islamic finance liabilities. Their task is to help structure their clients’ specialists ensure that finance deals are structured in a transactions, to protect their clients’ best legal and com- Shari’a-compliant manner. mercial interests, and to negotiate and document the contractual relationship between lenders and borrowers. Financial services regulation: lawyers advise financial It’s a hugely technical, ever-evolving and jargon-heavy and other businesses on everything that they might need area of law. For anything banks do with capital raising or to know about the legal limits of their financial and in- financial instruments, see Capital Markets. vestment activities. They focus especially on new and complex federal and state regulations. Major clients are usually banks, hedge funds, private equity firms, broker- “This area allows you to push yourself dealers and insurance firms. Post-recession there has and increase the percentage of been a multifold increase in the volume of legislation time spent doing things that are governing the financial sector. new, interesting, challenging and occasionally frightening.” – James What lawyers do Florack, Davis Polk Bank lending • Meet with clients to establish their specific require- Straightforward bank lending: a bank or other financial ments and the commercial context of a deal. institution lends money to a borrower on documented • Carry out due diligence – an investigation exercise repayment terms. Bank loans may be bilateral (made by to verify the accuracy of information passed from one bank to the borrower) or syndicated (arranged by the borrower to the lender or from the underwriter one or more financial institutions and made by a group of securities to potential investors. This can involve of lenders). on-site meetings with the company’s management, discussions with the company’s auditors and outside Acquisition finance: a loan made to a corporate borrow- counsel, and review of material agreements and other er or private equity sponsor for the purpose of acquir- documents. ing another company. This includes leveraged finance, • Negotiate with the opposite party to agree the terms where the borrower finances the cost of an acquisition of the deal and record them accurately in the facility by borrowing most of the purchase price without com- documentation. Lenders’ lawyers usually produce ini- mitting a lot of its own capital (as typically done in lever- tial documents (often based on a standard form or an aged buyouts). agreed precedent), and borrowers’ lawyers try to negotiate more favorable terms for their clients. Lawyers Real estate finance: a loan made to enable a borrower on both sides must know when to compromise and to acquire a property or finance the development of land, when to hold out. commonly secured by way of a mortgage on the ac- • Assist with the structuring of complicated or ground- quired land/buildings. breaking financing models, and ensure innovative solutions comply with all relevant laws. Project finance: the financing of long-term infrastruc- • Gather all parties to complete the transaction, ensur- ture (e.g. roads or power plants) and public services ing that all agreed terms are reflected in the loan doc- Practice Areas Practice projects (e.g. hospitals) where the amounts borrowed to uments, all documents have been properly signed and complete the project are paid back with the cash flow delivered and all conditions to closing have been met. generated by the project. • In a secured loan (most bank loans to below investment-grade borrowers require collateral), ensure that Asset finance: this enables the purchase and operation the agreed-upon collateral has been properly granted of large assets such as ships, aircraft and machinery. The and that all filings, registrations and other procedures lender normally takes security over the assets in ques- necessary to ‘perfect’ the security have been or will tion. be made.

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Rankings in Chambers USA “We work at the intersection of law and markets, so lawyers in our field not Top Ranked only need an understanding of the law, Alston & Bird but an inquisitive mind and an interest Bracewell in real-world economic and political Cahill Gordon & Reindel Cravath, Swaine & Moore developments.” – Robert Tortoriello, Davis Polk & Wardwell financial services partner, Cleary Foley & Lardner Gottlieb Goodwin Greenberg Traurig, PA Holland & Knight Financial services regulation King & Spalding Receive calls from banks and other financial institutions Kirkland & Ellis that seek guidance as to how business initiatives can be Latham & Watkins Mintz Levin Cohn Ferris Glovsky and Popeo PC implemented most effectively in US markets, in full com- Nelson Mullins Riley & Scarborough pliance with the letter and policy of US law. Proskauer Rose Ropes & Gray • Sit down with the client – speaking to individuals at a Sidley Austin very senior level – to find out what the client’s business Simpson Thacher & Bartlett plan and intentions are. Vinson & Elkins • Analyze the implications of implementing that plan White & Case based on what current or future regulation looks like, or can be expected to look like, and what the legal, Highly Recommended compliance, reputational, strategic, cross-border and Allen & Overy Baker Botts related risks of that plan might be. Cadwalader, Wickersham & Taft • Give advice on what changes may need to be made to Choate Hall & Stewart the business initiative to achieve regulatory compli- Cleary Gottlieb Steen & Hamilton ance and minimize risk. Debevoise & Plimpton • Regulatory lawyers are not just involved with compli- Duane Morris ance counseling: they also advise on enforcement and Fried, Frank, Harris, Shriver & Jacobson internal and external investigations; the restructuring Gibson, Dunn & Crutcher and disposition of bank assets; the organization of Goulston & Storrs bank units and subsidiaries; acquisitions, investments, Haynes and Boone strategic alliances and joint ventures; capital raising Katten Mayer Brown initiatives and the creation and distribution of bank Milbank securities and deposit and other financial instruments; Morgan, Lewis & Bockius the structuring of ‘living wills’ and recovery and reso- Morrison & Foerster lution plans; and the implementation and evaluation of Orrick, Herrington & Sutcliffe bank marketing, cross-selling and similar initiatives. Paul Hastings Paul, Weiss, Rifkind, Wharton & Garrison Practice Areas Reed Smith Realities of the job Shearman & Sterling • Some firms act for investment or commercial banks Sheppard, Mullin, Richter & Hampton on highly complex and often cross-border financings, Skadden, Arps, Slate, Meagher & Flom & Affiliates Sullivan & Cromwell whereas the work of others generally involves more Thompson & Knight mainstream domestic finance deals. Troutman Sanders • A good working knowledge of the bankruptcy laws is Vedder Price critical for lawyers practicing in the area of leveraged Weil, Gotshal & Manges finance. Banking lawyers advise for the worst-case Willkie Farr & Gallagher scenario, which is often a bankruptcy filing by the bor- Winston & Strawn rower. Understanding how the rules change once that filing is made is critically important, even for lawyers For more detail on ranking tiers and locations, visit www.chambers.com who never expect to set foot in a bankruptcy courtroom. • Lawyers need to appreciate the internal policies and sensitivities of their clients in order to deliver pertinent

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advice and warn of the legal (and reputational) risks • Another major focus for the Trump administration is involved in the transactions. Deals may involve the tax reform. In December 2017, Trump signed the Tax movement of money across borders and through dif- Cuts and Jobs Act which included lowering the corpo- ferent currencies and financial products. International rate income tax rate from 35% to 21%. Experts predict deals have an additional layer of difficulty: political this will make the US more attractive for inbound M&A changes in transitional economies can render a previ- activity and may also increase the value of US-domi- ously sound investment risky. ciled businesses. The changes will have a significant • Banking clients are ultra-demanding and the hours impact on deal-modeling, tax diligence and acquisition can be long. On the plus side, clients will be smart and agreement negotiations. dynamic. It is possible to build up long-term relation- • Following widespread cyberattacks on US financial ships with investment bank clients, even as a junior institutions, the Department of Financial Services associate. published requirements for financial services compa- • Working on deals can be exciting. The team and the nies to boost their cybersecurity. One survey by PwC other side are all working to a common goal, often un- found that 69% of financial services’ CEOs reported der significant time and other pressures. Deal closings being somewhat or extremely concerned about cyber bring adrenaline highs and a sense of satisfaction. threats. It also found that 81% of banking CEOs are • You need to become absorbed in the finance world. concerned about the speed of technological change Start reading The Wall Street Journal, the various deal- – more than any other industry sector. related trade publications or other good business- • Fintech may only make up a small share of the mar- oriented websites. ket but it’s rapidly growing. While these startups can • Regulatory lawyers need to remain constantly aware compete directly with banks in areas such as wealth of the latest political developments (potentially) af- management, loans or payment products, larger finan- fecting regulations. “We are not management consult- cial institutions are beginning to explore the opportu- ants, but our role involves a huge amount of market- nities fintech platforms can provide in areas such as based business analysis. Lawyers who want to work mobile banking apps or services. According to some in this area need to become very knowledge-focused. estimates, the fintech market is poised to grow at an Staying on top of the latest news in all the areas involved annual growth rate of 24.8% through 2022, to a height is a great ongoing challenge of the job,” says Robert of $309.98 billion. Tortoriello, a partner in Cleary Gottlieb’s financial in- • Interest in blockchain (the database technology which stitutions practice. underpins digital currency bitcoin) continues to in- • Regulatory lawyers operate on shifting sands. “Abnor- crease. The security of the blockchain, its transpar- mal is the new normal,” says Robert Tortoriello. “It is a ency – anyone using the system can view trades – and constantly evolving practice. At present lawyers are ad- the irreversible nature of blockchain transactions have vising on the ‘likely’ implications of the ‘likely’ regulatory all proved attractive to financial institutions. Although framework that will emerge from the ongoing legislative the practice is yet to go mainstream, banks continue to process, which has come forth from proposed regula- experiment with how the tech can be applied to ben- tions.” efit their businesses. • As Brexit continues to unfold down an unclear path, Current issues big US banks including Morgan Stanley, Citigroup and • The global pandemic is slowing economic activity and Bank of America are drawing up plans to try to avoid the increased risk will restrain companies’ freedom moving hundreds of jobs out of London before the UK to access finance. We’re already seeing a slowdown leaves the EU. The UK’s exit could have major implica- in finance transactions, while companies take fewer tions for overseas banks based in London if their ac- risks to safeguard cashflow. In law firms we’re seeing cess to the wider continent is cut off or the UK’s bank- a shift of resources from banking teams to bankruptcy ing industry undergoes a regulatory overhaul. Some teams. experts predict that Brexit could even allow US banks • Reforming the Dodd-Frank Act remains a priority for to extend their market share opportunity over their Eu- Practice Areas Practice the Trump administration, largely focused on relax- ropean counterparts. ing restrictions imposed on banks. Recent changes • Research by The Banker has shown that the total pre- include the EGRRCPA (Economic Growth, Regula- tax profits of the top 1,000 banks came in at $1,135 bil- tory Relief, and Consumer Protection Act) which was lion for 2019: higher than last year’s $1,112 billion and signed into law in May 2018. The 197-page act amends almost ten times higher than the $115 billion in 2009, a number of federal laws pertaining to the banking in the immediate aftermath of the financial crash. sector across the US and raises the threshold of banks • Chinese banks remain the four largest in the world. ‘too important to fail’ from $50 billion to $250 billion. This ‘Big Four’ comprises CBC, China Construction Bank, Agricultural Bank of China, and the Bank of

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China. Collectively, they have just under $1.1 trillion in Tier 1 capital. The next four biggest comprise JP Mor- gan, Wells Fargo, Citigroup, and HSBC with approximately $724 billion in capital. • Although Chinese banks may be the biggest at the top end, research shows that American banks continue to prove to be far more efficient, represented in higher returns on both assets and capitals. Practice Areas

110 Bankruptcy and restructuring www.chambers-associate.com

Bankruptcy and restructuring

In a nutshell often have competing interests. Acting for the debtor is The essential task of bankruptcy and restructuring law- a challenge on its own, because then “everyone’s problem yers is to avoid a client’s bankruptcy. The term ‘bankrupt- is your problem. You have to deal with every creditor and cy’ itself is a technical term that refers to when financial- ensure the pie is allocated fairly,” Bernstein explains. ly distressed companies, unable to restructure on their own, file for Chapter 11 to undergo a court-supervised Representing creditors is often simply about trying to restructuring. recover as much as you can from a debtor, but there are many different types of creditors to choose from. In order to avoid this scenario, a company must success- ‘Secured’ creditors include commercial and investment fully “restructure its debt to keep the company together banks, insurance companies and hedge funds, while ‘un- and retain its value,” chair of Davis Polk’s restructuring secured’ creditors include bondholders and vendors, or group Don Bernstein explains. But the path to financial ‘trade creditors’ (e.g. auto parts suppliers). In Chapter 11, viability – through court or not – can be convoluted. The there are official committees of unsecured creditors and legal know-how required and the multitude and variety debtor in possession (DIP) lenders, while out-of-court of actors involved make bankruptcy and restructuring a proceedings will have bondholder committees. rather complex practice. Other parties involved may include strategic buyers and Bankruptcy and restructuring attorneys must be adept private equity firms and hedge funds interested in acquir- at transactional work and litigation across a range of ar- ing distressed assets. They engage in the purchase, sale eas like M&A, securities, banking, labor and employment, and trading of debt claims. This has become one of the environment, tax and IP. biggest administrative components of Chapter 11 cases. A special committee set up by the board to oversee the Troubled companies will first attempt out-of-court re- restructuring may also be involved and, in instances of structuring, or corporate reorganization, in which they try ‘gross mismanagement’ by the company, a trustee is ap- to reach an agreement with their creditors. This has be- pointed to handle matters. come an increasingly important stage. “Traditional Chap- ter 11 cases can be expensive, inefficient and harmful to the business,” according to Jay Goffman, former global co- What lawyers do head of Skadden’s corporate restructuring group. “This Out-of-court restructuring for debtor means it’s important to advise companies on how to avoid • Analyze the situation in order to determine the feasibil- Chapter 11 or shorten their time in Chapter 11 and similar in- ity of staying out of bankruptcy. What’s the problem? solvency proceedings, rather than convincing them to do it.” What caused it? How big is it? Will it result in a default that is uncontrollable? Who’s in the creditor body? Are they secured or unsecured? What’s the litigation sta- “Bankruptcy is the last bastion of the tus? What’s the liquidity status? Are there sufficient generalist.” funds to stay in business while being restructured? • Look for ‘red flags,’ such as jurisdiction. “You need to Chapter 11 provides for a court-supervised restructur- know if the entity has international operations, how it oping and, crucially, protection from creditors, who are erates, how it’s interconnected,” explains Miller. barred from seeking to retrieve their money until the • Work with financial advisers to create a model of how company is restructured. A notable feature of Chapter the crisis will be dealt with. 11 work is the growing prevalence of ‘distressed M&A,’ • Try to persuade creditors to “just stand still” and not Practice Areas Practice which describes the selling of parts – or the whole – of pursue immediate payback. “You need to focus on the the ailing company. Such sales are done under the provi- nature of the debt in order to determine who you ap- sions of Section 363 of the Bankruptcy Code and often proach to get a standstill or moratorium,” Miller says. referred to as ‘363 deals.’ Deals can also take place out- • Negotiate with creditors and try convincing them that side of court, but it is less common; buyers often prefer the problem is best solved out of bankruptcy. the safety of court-sanctioned sales. • If negotiations are successful, work out payment plans for each creditor. The number of parties involved in a restructuring can be • If not successful, file for Chapter 11. vast. They come from all walks of a company’s life and

111 www.chambers-associate.com Bankruptcy and restructuring

Rankings in Chambers USA

Top Ranked Akin Gump Strauss Hauer & Feld Goulston & Storrs Alston & Bird Greenberg Glusker Fields Claman & Machtinger Arnold & Porter Greenberg Traurig, PA Davis Polk & Wardwell Holland & Knight Haynes and Boone Jackson Walker K&L Gates Jenner & Block King & Spalding Katten Kirkland & Ellis Latham & Watkins Milbank Mayer Brown Mintz Levin Cohn Ferris Glovsky and Popeo PC Morgan, Lewis & Bockius Paul, Weiss, Rifkind, Wharton & Garrison Morrison & Foerster Perkins Coie Munger, Tolles & Olson Reed Smith Nelson Mullins Riley & Scarborough Vinson & Elkins O’Melveny & Myers Weil, Gotshal & Manges Orrick, Herrington & Sutcliffe Paul Hastings Highly Recommended Proskauer Rose Baker Botts Ropes & Gray Bracewell Schulte Roth & Zabel Brown Rudnick Sheppard, Mullin, Richter & Hampton Choate Hall & Stewart Sidley Austin Cleary Gottlieb Steen & Hamilton Simpson Thacher & Bartlett Covington & Burling Skadden, Arps, Slate, Meagher & Flom & Affiliates Debevoise & Plimpton Stroock & Stroock & Lavan Dechert Sullivan & Cromwell Duane Morris Thompson & Knight Dykema Gossett PLLC Troutman Sanders Foley & Lardner Vedder Price Foley Hoag Venable Fox Rothschild White & Case Gibbons P.C. Willkie Farr & Gallagher Gibson, Dunn & Crutcher WilmerHale

For more detail on ranking tiers and locations, visit www.chambers.com

Court-supervised restructuring for debtor • Build creditor consensus around the chosen exit strat- • Initiate a Chapter 11 case to pursue restructuring with- egy. This can be a lengthy process and require delicate in the protective provisions of the Bankruptcy Code negotiations. (usually known as ‘filing for Chapter 11’). If creditors think they are being economically harmed,

Practice Areas • • Prevent stigmatization of employees and business there could be extensive litigation. operations. Create a detailed communication plan to • Document and effectuate the eventual agreement. include regulators, shareholders, employees, vendors and clients. “Entry into Chapter 11 should be made as smooth and unruffled as possible,” says Marshall Realities of the job Huebner, global head of Davis Polk’s restructuring • “You need to be psychologically ready to handle the group. stress and strain inherent in being involved in a practice • Secure financing. “Without liquidity to pay the bills, all in which, by definition, there are huge amounts of fail- is for naught,” Huebner explains. ure,” says James Sprayregen of Kirkland & Ellis. • Once liquidity is secured, work with the management • Jonathan Henes of Kirkland & Ellis sets out the skills team and financial advisers to decide what’s core and needed by junior associates: “In the early years the fo- non-core to the business. Establish the company’s new cus needs to be on strong writing skills and learning how vision. to be a strong oral advocate whether in negotiations or in court. As you get more senior, you need to also focus on

112 Bankruptcy and restructuring www.chambers-associate.com

the commercial aspects of the restructuring and become • Lenders’ needs have to be attended to carefully, Hueb- a counselor to clients.” ner explains, because “very frequently if lenders have a • Henes highlights the attraction of the bankruptcy vested interest in a company, they’re the ones who will practice as being “helping companies go from a place of get wiped out; more typical than not they become Chap- trauma to a place of strength – that is a powerful thing.” ter 11 financiers.” As such financiers, lenders tend to • This area is renowned for being particularly suited to impose very difficult and sometimes onerous terms on those keen to get involved in the client side of things. the debtor to stimulate sales and liquidations. Henes explains that you need “good judgment to thrive • Sprayregen notes that “ultimately, the most success- because these are hard situations not just intellectually ful cases will be the ones that are the least problematic. but emotionally. You need to be focused on the human Those cases are less interesting from the media’s per- aspect of it all.” spective, but that’s when you really see success.” • The extent to which transactional work and litigation • Ira Dizengoff of Akin Gump describes how bankrupt- cross paths during a restructuring cannot be overstat- cy is a very fast-paced area of the law: “The nature of ed. “There is a transactional aspect even when in court. the companies that undergo reorganizations means you You litigate by day and negotiate by night,” Bernstein will see more cross-border restructuring, which adds to describes. the complexity. You are at the cutting edge and it moves • The nature of cases can vary enormously. Sprayregen quickly – there is never a dull moment.” adds: “Our work involves dozens of industries and that really does give you the opportunity to learn a lot.” • Debtors face innumerable difficulties. They have no “You need to be psychologically ready political muscle, whereas creditors do – and flex it. to handle the stress and strain inherent Though bankruptcy laws are constantly amended, in being involved in a practice in which, they continue to favor creditors. by definition, there are huge amounts • In order to lead such a diverse group of parties to a consensus, debtor attorneys must possess strategic, of failure.” tactical and managerial skills. • Steering clients clear of Chapter 11 through out-of- Current issues court restructuring often requires a creative and inno- • The obvious story here is the economic crisis created vative approach. by coronavirus. Vulnerable companies will be seeking • The current Chapter 11 was passed in 1978, but it out lawyers to manage their liquidity and solvency, comes from Chapter X, which was passed in the and handle their bankruptcies. Already we’ve seen 1930s. “The Bankruptcy Code has its roots in the Great significant growth in bankruptcy staffing, reallocating Depression,” Bernstein says. from transactional areas. • Chapter 15 is the provision for cross-border bankrupt- • With e-commerce booming, the woes of the retail in- cies that dictates proceedings in the USA when the dustry look to continue. In 2018, the retail industry ac- main proceeding is in another country. Designed to counted for five of the ten largest Chapter 11 filings. ensure that all creditors and debtors are treated fairly The trend continued in 2019 as a number of big retail irrespective of jurisdiction, it may also involve Chapter brands filed for bankruptcy including Shopko, Gymbo- 11 proceedings if the debtor’s assets are sufficiently ree, Diesel, Barneys New York, Forever 21, and Char- complex. lotte Russe. • Restructuring is a lengthy process that requires a con- • In a report published by Moody’s in January 2020, VP- siderable amount of work before an outcome can be Senior Analyst Anastasija Johnson stated that “US reached. “There are so many different stakeholders and speculative-grade companies have $1.186 trillion of debt other components, and you spend a lot of time on the maturing over the 2020-24 period, up from $1.044 tril- process itself – which I didn’t expect as a young associ- lion last year, for 2019-23 maturities.” ate,” Sprayregen tells us. • That concern is echoed by additional research which • Bankruptcy and restructuring is considered a coun- suggests that large companies in the US owe approxi- Practice Areas Practice tercyclical practice. When the market is healthy, bank- mately $10 trillion in corporate debt, representing 47% ruptcy attorneys may find themselves working on of the country’s GDP – the largest in its history. Even more diverse corporate matters. more worryingly, $5 trillion of this will become due in • Negotiating terms for debtors in possession is a com- the next five years. plicated balancing act. Attorneys must assess liens or • According to a report by PwC, the number of bank- security interests, prioritize creditors, determine the ruptcy filings in the US increased by 2.4% in 2019. That value of secured properties and argue for or against doesn’t sound like much, but the aggregate liabilities continued possession of secured properties in order to addressed in those filings increased by a substantial remain operating to better pay off creditors. 55.9%.

113 www.chambers-associate.com Bankruptcy and restructuring

• Cumulatively, research by the American Banking Insti- • After nearly a decade in recession, the US territory tute shows that California had the most filings in 2019 of Puerto Rico filed for what amounted to a federal at 67,150. That’s followed by Illinois with 47,860 and bankruptcy in May 2017. The island owed $74 billion in Florida with 45,526 filings. debts and more than $53 billion in unfunded pensions; • Bankruptcy can be an expensive and lengthy process by March 2018 law, accounting and consulting firms and companies try to avoid it, but it’s been getting had charged it $75 million in fees as a result of debt steadily more costly. To give an example of what this reorganization proceedings. can look like at the top end, Kirkland & Ellis’s lawyers were charging Toys R Us as much as $1,745 an hour during the company’s bankruptcy proceedings – though this was 25% more than the highest rate in ten of 2017’s largest bankruptcies. Practice Areas

114 Capital markets – Cahill www.chambers-associate.com

Capital markets – Cahill

Intrigued by the thought of becoming a capital markets lawyer and want to know more? Cahill’s pros in the area are on hand to shed light on their intricate and complex practice.

Chambers Associate: What is capital markets law? the company and drafting risk factors to include in a prospectus, and making sure that the prospectus complies Jennifer Ezring, partner: Capital markets, or securities, with relevant securities laws. lawyers work on transactions where a company uses equity securities (stock, or other ownership shares of Negotiating contracts, including the Underwriting/Pur- the business) or debt securities (representing an initial chase Agreement, which is the contract between an is- borrowing of money, with a specific amount to be repaid suer and one or more investment banks relating to un- over time) to meet its financing needs. A capital markets derwriting a securities offering. attorney works either with a company (the “issuer” of a security) or with an investment bank (the “underwriter” Senior associates, meanwhile: of the offering), but the goal on both sides of these collaborative transactions will be to ensure the issuer and Oversee transactions on a day-to-day basis and serve as the underwriters are in compliance with the securities the primary client contact. regulations governing the capital markets, and to provide the company with adequate financing by structur- Negotiate the more complex aspects of a transaction, ing a security on terms that are palatable to investors. such as the Description of Notes / Indenture, which (for bonds) describes the terms of a bond, including the “cov- CA: What kind of work can associates expect in this enants,” which are restrictions on an issuer’s activities area? that are intended to prevent the issuer from weakening its credit quality. These covenants can be very complex Ani Ravi, associate: Junior associates work on: and are highly negotiated.

‘Due diligence,’ which is about understanding an issuer’s CA: What do partners do in this area? business at a detailed level to confirm, or help draft, the prospectus, and make sure that everything important JE: Capital markets partners work with the issuer and the about a client is being disclosed to potential investors. underwriters to decide what type of securities will best Due diligence involves reviewing contracts, doing re- suit the company’s needs, to understand the company’s search with third-party sources, speaking to company financial situation, to set the terms of those securities management, and sometimes doing on-site visits. Often in order to ensure they will be saleable to the market at the junior associates doing the due diligence know more the time, and to structure the timing and mechanics of about an issuer than anyone else on the team. the actual offering to comply with all securities laws and regulations. The partners will work with the associates Coordinating documents as a transaction is about to to negotiate final disclosure and offering documentation close – ensuring that funds are transferred, mortgages/ and the operative issuance documents. security are granted, the right certifications, opinions and filings are made, and that all of the formalities nec- CA: What are the highs and lows of the practice? Practice Areas Practice essary for a new stock or bond to be issued and trade have been completed. Sarah Walton, associate: Capital markets is an exciting practice. It is heavily market-driven, so it is fast-paced Mid-level associates oversee some due diligence and most of the time. Practicing capital markets exposes you also work on: to information about diverse domestic and international markets. Drafting disclosure requires an in-depth under- Drafting a prospectus, which includes working with the standing of a company and the company’s industry, so company and investment bankers to describe a com- we are constantly learning new markets and industries. pany’s business, thinking about risks that might affect

115 www.chambers-associate.com Capital markets – Cahill

The low of practicing capital markets is the unpredict- AR: The recession brought in a number of new securi- ability of your hours. Given how much the market affects ties regulations, and there continue to be changes in the this practice, it is not uncommon for a timeline to get laws both in the US and abroad which affect what kinds expedited due to favorable conditions. This can result in of deals can get done. In addition, since the recession, late nights and weekend work. banks have generally become more careful about risk, including being more careful in ensuring that prospectuses are accurate and not misleading, and that issuers “Practicing capital markets exposes do not have any regulatory issues. In particular, banks you to information about diverse have become very concerned to ensure that issuers do domestic and international markets.” not have any problems with sanctions, money laundering, bribery, anti-terrorism, and similar areas.

AR: High points include closing a deal, especially a high- JE: Any market disruption will affect securities work sig- profile one – it’s a nice feeling to see your hard work re- nificantly. While the recession was a major market swing, flected in a newspaper article when your deal prices. even a smaller political event can cause rates to rise or Another high is navigating the various laws and regula- fall rapidly, making one type of financing more or less tions governing capital markets to allow your client to do palatable to issuers or investors. Given the amount of a deal in a creative way. market sensitivity around an event as large as the recession, it has become increasingly important to be facile Probably the biggest low is when a deal falls through at with all types of financing alternatives, and to be able to the last minute – often this can be days or even hours be- think creatively about what an issuer may be able to offer fore you would have closed, and comes after weeks or to investors. months of work.

JE: On each new transaction we learn about a company “Private markets are the new public from the inside out, working together with management, markets.” investment bankers, and often private equity sponsors, so the practice is always interesting and “fresh.” The players CA: What are the latest trends and developments in are generally sophisticated and often have worked with capital markets? each other before (including the “opposing” lawyers), which tends to bring a sense of camaraderie and collegi- SW: There has been a continuing focus on sanctions ality. Because market forces are at work dictating when and anti-corruption, and a recent focus on cybersecu- a certain security should be offered for sale, timing can rity. AR: There are a few major trends: be fast and pressure can be high when a transaction is in full swing, which makes the deal an exciting ride. Increased ease of crowdfunding and other small-scale public offerings. It’s now possible for small companies to CA: How does your work interact with other practices? raise relatively small amounts of money from the public without going through the full process required to go JE: Capital markets associates act as the ‘hub’ of the public. transaction wheel, coordinating with attorneys in many other areas relevant to the transaction, including corpo- Private markets are the new public markets: companies Practice Areas rate attorneys who are focused on the issuer’s overall of all sizes are finding that they don’t need to be public to practice and regulation, and verifying that the financ- attract capital, whether it’s large private companies like ing transaction will work within the framework of the Uber (that are able to raise billions of dollars without go- company’s other commitments and its organizational ing public) or companies of all sizes that issue bonds only structure. A capital markets associate will confer with to institutional investors. bankruptcy attorneys where there are questions of enforcement or protection in a ‘worst-case’ scenario; tax Lightly regulated or unregulated substitutes to tradition- attorneys, who are involved in structuring the issuance al capital markets: these take many forms, from syndi- on a cost-efficient basis; real estate and environmental cated loans, which can be borrowed by clients that might attorneys where real property will be taken as collateral; otherwise have issued bonds, to crowdfunding and initial and litigators, who evaluate various risks existing at an coin offerings which completely bypass traditional secu- issuer or potentially created by a financing. rities regulation.

CA: How has this area changed since the recession? CA: What personal qualities make a good capital markets lawyer?

116 Capital markets – Cahill www.chambers-associate.com

JE: My top two answers to that question would be crea- prove helpful after law school graduation. It definitely tivity and team play. Creativity is essential because each doesn’t hurt to start reading some financial news on a new transaction holds a puzzle that needs to be solved in regular basis as well. a way that is mutually beneficial for all parties involved. Being able to work as part of a team is critical, because SW: It is helpful to have a basic understanding of finan- on each transaction you will find individuals with var- cial statements and general accounting. ied skill sets working together to create a product that meets a common goal – unlike some other areas of law, AR: Law school courses that are very helpful include all parties need to embrace the result, even those techni- Securities Regulation, which provides an overview of the cally “adverse” to each other. securities laws that govern capital markets transactions; Secured Transactions, which explains the rights of se- AR: Being commercial: understanding the business and cured creditors; and a course in negotiation, offered by economic underpinnings of transactions. Being curious many law schools, which can be helpful as capital mar- about businesses: the best capital markets lawyers un- kets associates (particularly at Cahill) will be negotiating derstand how the businesses that they’re representing with their counterparts soon after they start practicing. work, whether that’s a mine, a bank, a retail store or a hospital. Being able to multitask: each deal has multiple CA: What opportunities in the area are unique to Ca- workstreams, and as associates become more senior, hill? they are often on many deals at once, so the ability to switch gears quickly is essential. Being good at dealing AR: Cahill is the market leader in leveraged finance and with people: capital markets work involves dealing with high-yield bonds – with over three times the market share many people with conflicting interests, and a good law- of any of its competitors. This means that as an associate, yer is able to satisfy all of the various parties that she/he you’ll have the opportunity to work with a very diverse has to deal with. Being resilient: sometimes a deal you’ve set of clients, and you won’t be limited to one industry, been working on for months just dies, and sometimes or one geography, or one particular type of transaction. right after you close one, there are two more in line right Because of the generalist philosophy and Cahill’s strong behind it. Lastly, being good at managing – especially as market share, Cahill is often the go-to firm for many associates become more senior, they have a manage- clients, and they rely on Cahill’s advice in multiple prac- ment role on each of their transactions. tice areas – in particular, capital markets and leveraged lending. Many deals involve both a capital markets and a secured loan component, or may switch from one to the “Creativity is essential because each other – because Cahill associates are generalists, they new transaction holds a puzzle that can advise clients on all aspects of a transaction. needs to be solved in a way that is mutually beneficial for all parties JE: Cahill’s market share and breadth of client base puts us in an excellent position to see and understand the involved.” latest technology and market terms at any given time. Because the capital markets are subject to significant CA: How can students brush up on their capital mar- fluctuation based on a number of factors, including eve- kets knowledge? rything from recent case law involving financings, collateral security and bankruptcies, to the global political and JE: While there are no prerequisites to becoming a capi- regulatory environment – the ‘best’ answer for a client in tal markets attorney, students may find it helpful to have a given scenario can change rapidly. Our associates are taken a basic accounting or finance course, preferably at exposed to a broader segment of the market than those the business school affiliated with their law school. The at our peer firms, which allows our attorneys to develop US securities laws, including SEC rules and guidelines market knowledge right from the start of their careers and general disclosure issues, are central to the work we and be seen by clients as a ‘counselor’ with valuable in- Practice Areas Practice do, so courses in securities regulation and drafting will sight at an earlier stage.

117 Capital markets – Cahill www.chambers-associate.com

Authors

Jennifer Ezring Ani Ravi Sarah Walton Partner Associate Associate Practice Areas

118 Capital markets www.chambers-associate.com

Capital markets

In a nutshell a public company is incredibly commercial and requires a Capital markets lawyers feel all the highs and lows of great deal of strategy. It’s unlikely the client will have IPO market forces more than any other practitioner, and experience, so they will be reliant on their attorneys.” The when the Great Recession hit the practice took a hit New York Stock Exchange and Nasdaq are the major ex- too. The vast sums exchanged and the technicality of changes in the US and most American public companies the transactions mean that it will always remain an im- will be listed on one of them. Companies can list on mul- portant area for BigLaw firms. Essentially, the world’s tiple exchanges around the world. capital markets are trading floors (either real or virtual) on which cash-hungry businesses obtain funding by sell- Debt capital markets ing a share of their business (equity) or receiving a loan This covers many types of debt instrument, but gener- (debt) from lenders. ally speaking it deals with a borrower raising capital by selling tradable bonds to investors, who expect the full These ‘markets’ are used by companies with unique fi- amount lent to be paid back to them with interest. Bonds nancing needs which traditional bank loans cannot sat- (also called ‘notes’) come in all shapes and sizes, from isfy. They offer more freedom to companies than obtain- investment grade to high-yield (‘junk’) bonds. The terms ing cash via bank loans which tie both parties into the of the bond – including the interest rate (or ‘coupon’) and term of the loan. Capital markets allow for companies maturity date – are decided by the underwriter and issuer. to obtain massive sums with more flexibility; they also offer up limitless investment opportunities. Large finan- Why would a company issue bonds rather than take out cial institutions offer customized services to companies a bank loan? As mentioned above, the terms of a bank seeking funding on the capital markets. These services loan can be restrictive to both parties: bank debt can pre- include advice on debt and equity offerings, on securiti- vent companies from making equity or debt issuances or zation and on the creation of derivatives. Debt (bonds), from acquiring other companies until the loan is paid off. equity (stocks) and derivatives are all types of security, The terms of a bilateral loan tie both parties in, so a bank and capital markets law is sometimes referred to as ‘se- can’t transfer risk or sell this debt with the same flex- curities law’. ibility that the bonds market allows. Bonds are tradable; risk and its rewards can be sold on and spread across numerous lenders (bondholders), meaning that a company “The range of capital raising companies can raise much larger sums that can only be matched by pursue is almost endless, and is limited arranging a syndicated loan (a group of banks chipping only by human creativity.” in on the principal), but without the same bank loan obligations that syndications entail. Plus, bondholders can be anyone, not just a bank. Attorneys advise companies (‘issuers’) and investment banks (‘underwriters’) on these complex capital markets Structured finance and securitization transactions. Issuer and underwriter will both engage a This can get gloriously complex, but its aims are simple: separate law firm. The issuer’s attorneys will sometimes to increase liquidity and structure risk, which in turn of- help their client analyze which type of security to issue. fers up extra funding for borrowers. Securitization is the This decision depends on the nature of the company, the core of the process, which takes a lowly untradeable desired duration of the loan, who the buyers are likely to piece of debt, such as a mortgage, vehicle loan or a cred- be, and market demand. If an issuer is new to the market, it card receivable, bundles it together with debt of the they may begin by seeking their lawyers’ advice on the same class, and sells the bundle of debt on to investors, Practice Areas Practice processes involved, before approaching an underwriter. such as pension funds, hungry for the cash flows that come with the debt. Equity capital markets Within equity, there are initial public offerings (IPOs) and To securitize debt a bank will first set up a special-pur- follow-on offerings of common and preferred stock. An pose entity (SPE) to isolate the debt risk from the bank’s IPO is a transformational event for a company. “The IPO main operations, and separate the legal rights to the is the ‘ne plus ultra’ of capital markets work,” says Josh debt, enabling it to be transferred to new holders. Within Bonnie, co-managing partner of the DC office at Simp- the SPE are the bundled loans which enable the SPE son Thacher. “The decision of whether or not to become to issue bonds, where the interest on the bundled debt

119 www.chambers-associate.com Capital markets

Rankings in Chambers USA limited only by human creativity,” says Josh Bonnie. Collat- eralized debt obligations (CDOs) are a unique structure in that they group a variety of types of debt and credit risk, Top Ranked where different classes are called ‘tranches’. The higher Cadwalader, Wickersham & Taft Cahill Gordon & Reindel the tranche’s risk, the greater the yield. Cleary Gottlieb Steen & Hamilton Cooley Securitization shouldered much of the blame for the Cravath, Swaine & Moore credit crunch and the ensuing global economic havoc. Davis Polk & Wardwell Complicated structures led to a murky tangle of debt Goodwin obligations, grouping different debt classes and exploit- Latham & Watkins ing credit enhancement. All was rosy until the housing Mayer Brown bubble burst, mortgages defaulted and the ugly truth Morgan, Lewis & Bockius emerged. Don’t let this put you off; there still is and will Ropes & Gray be demand for structured finance lawyers, but the order Sidley Austin Simpson Thacher & Bartlett of the day is caution. For a leisurely introduction to the Skadden, Arps, Slate, Meagher & Flom & Affiliates topic, watch ‘docudrama’ The Big Short. Sullivan & Cromwell Vinson & Elkins Derivatives Wilson Sonsini Goodrich & Rosati At its most basic, a derivative is a financial instrument used by banks and businesses to hedge risks to which Highly Recommended they are exposed due to factors outside of their control. Akin Gump Strauss Hauer & Feld They can also be used for speculative purposes by bet- Allen & Overy ting on the fluctuation of just about anything, from cur- Alston & Bird rency exchange rates to the number of sunny days in a Arnold & Porter Baker Botts particular region. The value of a derivative at any given Bracewell time is derived from the value of an underlying asset, Clifford Chance security or index. Futures, forwards, options and swaps Debevoise & Plimpton are the most common types of derivatives. Forwards are Dechert agreements between two parties that one will buy a cer- Fried, Frank, Harris, Shriver & Jacobson tain product from the other for a fixed price at a fixed Gibson, Dunn & Crutcher date in the future. Hedging against future price risks and Katten speculation over the price movement of the underlying King & Spalding assets are the big attractions. Futures are standardized Kirkland & Ellis forwards, which can be traded on the futures market. Op- Milbank Morrison & Foerster tions are optional futures, where a buyer has the right O’Melveny & Myers but not the obligation to purchase or sell a product at a Orrick, Herrington & Sutcliffe certain date in the future for a certain price. Swaps are Paul Hastings agreements between two parties to exchange assets at Paul, Weiss, Rifkind, Wharton & Garrison a fixed rate, for example to protect against fluctuations Reed Smith in currency exchange rates. Schulte Roth & Zabel Practice Areas Shearman & Sterling Weil, Gotshal & Manges What lawyers do White & Case IPO or other equity offering Willkie Farr & Gallagher WilmerHale • Work with the client and its accounting firm to prepare Winston & Strawn and file a registration statement with the Securities and Exchange Commission (SEC). For more detail on ranking tiers and locations, visit • Do due diligence on the issuer company and draft a www.chambers.com prospectus (as part of the registration statement) that provides a welter of information about the company and its finances, as well as past financial statements. forms the cash flows or bond yields. Mortgage securi- • Help the accountants draft a comfort letter, assuring ties like residential mortgage-backed securities (RMBS) the financial soundness of the issuer. and commercial mortgage-backed securities (CMBS) are • File with the SEC and wait 30 days before getting ini- among the most common in the market, but “the range of tial comments from them. capital raising companies pursue is almost endless, and is

120 Capital markets www.chambers-associate.com

• Undergo multiple rounds of commentary back and on structure, as well as suggesting ways to resolve or forth with the SEC. This can take one or two months. mitigate those problems and issues. • Negotiate approval of a listing on the stock exchange. • If all has gone well, and if the new structure has suf- This involves the submission of documentation, certi- ficient prospects for legal and commercial success, fications and letters that prove the client satisfies the lawyers will draft new documentation describing the listing requirements. make-up of the derivative. • Finalize the underwriting agreement and other documentation. Realities of the job Notwithstanding the differences mentioned in the de- Debt offering scriptions above, there are big similarities between the • Plan out the deal with issuer and underwriter. A time- work of lawyers on debt, equity and other securities line is drawn up and tasks are allocated between the transactions. different parties. • Draft a prospectus for SEC registration or a Rule 144A • The nature of lawyers’ involvement in a capital mar- offering memorandum. kets transaction depends on its novelty. “If someone is • Conduct due diligence on the issuer to examine its doing a securitization or designing a derivatives product creditworthiness, make the disclosure accurate and they must address those issues which are novel,” says highlight any associated risks. Josh Cohn, former head of US derivatives and struc- • Deliver to the underwriters at closing a legal opinion tured products at Mayer Brown. “If you are working on and a disclosure letter on the offering based on due a product based on a preexisting structure, you may be diligence. asked to look at certain details like new swaps arrange- • Draft the indenture: a document describing the bond’s ments.” interest rate, maturity date, convertibility and so on. • Junior lawyers usually practice in all areas of capital • Draft the purchase (or ‘underwriting’) agreement. markets law, sometimes combining this with other corporate work too. Some top firms have specialist departments for each capital markets subgroup. Part- Securitization ners often specialize in debt, equity, securitization or • Work with the underwriter and issuer to draw up the derivatives work, but they may continue to dabble in structure of a security, and help the parties negotiate other areas too. “I would advise junior associates to get the terms of that structure. “We will literally sit down involved with as many different types of transactions as with all the parties and draw boxes, charts and arrows possible,” says Robert Gross, capital markets partner on a whiteboard in order to come up with new ideas,” ex- at Clifford Chance. “You’ll end up getting more to do plains John Arnholz, structured finance transactions that way, and it will be more burdensome, but you will partner at Morgan, Lewis & Bockius. get a ton of experience.” • Draft the disclosure document and the prospectus or • Clients in the world of finance are incredibly demand- private placement memorandum. “It is a descriptive ing and attorneys usually work very long hours. On the piece – almost like a magazine article,” says Arnholz. “It plus side, clients are also smart, sophisticated and dy- covers all the risks and other characteristics of owning namic. Large law firms usually have strong and close a security.” relationships with investment bank clients, meaning • Draft the purchase agreement documenting the trans- that juniors can get frequent client contact. “I love action. “This involves a lot of negotiation back and forth working with companies’ management teams and with between issuer, underwriter, trustees, service providers bankers,” says Arthur Robinson, head of the capital and insurers,” Arnholz tells us. markets practice at Simpson Thacher. “On each deal I do I ‘meet’ a new company and learn about the business from the inside from the CEO and CFO. It may sound odd, Derivatives but companies do have their own personality, so it’s akin Practice Areas Practice • Be approached by a financial institution client (e.g. a to meeting a new person each time.” hedge fund) with an idea to create a new derivatives • The content and organization of prospectuses tends product. to be fairly standard, but lawyers consider working on • Communicate back and forth with the client discuss- them a rewarding exercise because a good deal of cre- ing legal issues and risks related to various possible ative writing is required to communicate a company’s structures for the product. narrative. • Home in on a specific structure for the product. • The purchase agreement is a lengthy contract in which • Prepare a memo explaining the problems, issues and the underwriter agrees to buy the securities and resell legal risks associated with the derivative’s agreed-up- them to investors.

121 www.chambers-associate.com Capital markets

• As soon as a company undergoes an IPO, it will be sub- Current issues ject to all the rules and requirements of a public com- • We’re seeing headcount shifts already away from pany, so the necessary organizational structure must capital markets as law firms prepare for a contract- be in place before the IPO. ing market under the pandemic. In a recession, capital • Follow-on offerings of common equity are much sim- markets feels the hit more strongly than most practice pler than an IPO because most of the basic disclosure groups, surviving as it does on investor confidence. has already been drafted and will only need to be up- The glimmer of hope is that economists are foreseeing dated. a swift recovery once the virus is under control. • Underwriter’s counsel drafts most documents related • In an effort to combat adverse effects of the corona- to a bond issue. An issuer’s lawyers will comment on virus on the global economy, in March 2020, the US them and negotiate changes. Federal Reserve slashed interest rates to a range of • Due diligence is conducted by both underwriter’s and 1%- to 1.25% - a move unprecedented since the finan- issuer’s counsel, but is most important to the under- cial crash in ’08. Rates changes can have a ripple ef- writer. A due diligence investigation may help in estab- fect on capital markets, as borrowing money becomes lishing a ‘due diligence defense’ in any future investor more expensive. lawsuits claiming a violation of securities laws. • “Securities law is changing dramatically,” John Arn- • A debt offering can be registered with the SEC or un- holz comments. “In the old days, rules about securities registered under Rule 144A of the 1933 Securities Act. weren’t written down. They were based on lore. Many In the latter case bonds can only be bought by certain regulations in the industry are new. That means old large registered institutional buyers. hands like me have a smaller advantage over new people • Issuer’s and underwriter’s counsel work together with entering the field than we used to. Industrious young as- a team of bankers, accountants, insurers and an is- sociates can learn about new regulations and outsmart suer’s management to get securities issued. “There is the partners!” a very collaborative atmosphere,” says Bill Whelan, cor- • According to a report by PwC, London and New York porate partner at Cravath, Swaine & Moore. “The team remain the world’s two epicenters of capital market has the common goal of getting the deal done. There are activity, accounting for nearly 45% of activity. How- moments when we have disagreements, but rarely does ever, 76% of surveyed capital markets executives also it get acrimonious.” If teams get on particularly well, expected a rival center to emerge in the Asia-Pacific deals may end with a closing dinner or drinks event. region in the years through 2020. Hong Kong was • The bond market is huge and influential. It is generally flagged as the most likely destination, followed by considered to have a large influence on the health of Shanghai and Tokyo. the US and global economy. • According to a report by SIMFA (Securities Industry • Market conditions are very important to the success and Financial Markets Association), the US equity of capital market deals – more important even than the markets accounts for roughly 41% of the $75 million willingness of the parties to get the deal done. “The in global equity market cap, while its fixed income one negative in this area of practice is that the markets market comprises 40% of the $103 trillion securities are always unpredictable,” says Whelan. “You can invest outstanding the globe. a lot of time in getting a deal organized, but market con- • The same report found that as of September 2019, ditions can mean it falls through.” IPOs totaled $42.4 billion, essentially flat compared • Practitioners recommend that those interested in the to 2018. field should take law school classes in securities regu- AI continues to disrupt the market, as companies in-

Practice Areas • lation, corporate finance and the Uniform Commercial creasingly harness technology to optimize trade pro- Code (UCC). Knowledge of bankruptcy, property and cesses and reduce operating costs. tax law is useful too, as is gaining an understanding • A big development in Europe, meanwhile, is the Euro- of the basic principles of accounting. Reading the fi- pean Commission’s proposed ‘Capital Markets Union’ nancial press – starting with The Wall Street Journal – is (CMU) – which aims to remove barriers to investment in a must. Europe. The UK’s Brexit has put a spanner in the works somewhat, although the CMU appears to be moving forward regardless.

122 Climate change and renewable energy www.chambers-associate.com

Climate change and renewable energy

Climate change and renewables international deals than one in New York. Head to a In a nutshell regional firm if the scope you’re after is smaller and Climate change attorneys advise on four core aspects of more localized: firms in cities like Oklahoma City at- law. Transactional advice is the most common aspect, and tract energy work but aren’t known as ‘practice area mainly involves negotiating carbon-related deals (such hubs’ in the same way San Francisco and DC are. as carbon credits or projects to reduce carbon emissions, • Associates tend to do a lot of hands-on work to gain most of which have international dimensions). Next up is expertise in areas that are still developing. Roger litigation; it involves challenging climate change rules, Martella, former environment practice head at Sidley regulations and laws, as well as defining the boundaries Austin and climate change expert, explains: “This is a of the law. Regulatory advice is a growing area, due to rapidly growing practice and constantly evolving, so as- the increasing number of climate change regulations be- sociates are becoming experts in areas that will become ing issued. Companies are therefore relying on lawyers more mainstream within a few years.” more than ever to ensure that their activities are compliant with the latest regulations. Failure to comply leads us to the final aspect, enforcement, which is also rising in Realities of the job prominence as the body of regulations expands. • Climate change is a niche area, so it’s unlikely that you’ll be able to specialize full-time in it. Many lawyers specialize in a broader practice area – such as energy, “You have a role to play in solving environment, international law or litigation – and then some of the world’s most important work on climate change matters as part of their port- problems. A lot of the industry focuses folio. on making sure developing parts of the • Advising environmental organizations and government bodies may be your ultimate goal in this area, but the country and the world provide people reality is that most of the work involves assisting cor- with reliable and affordable energy in porations with climate change compliance. as clean a way as possible.” – Roger • As the body of climate change law is comparatively Martella small, knowledge can be built up quite quickly. How- ever, it is also important to have some technical knowledge, so science and engineering degrees can be par- What lawyers do ticularly useful in this respect. • Climate change and renewable energy practices at- • In terms of approach, being able to adapt to a client’s tract a broad client base, which can be split into three style is important, as Todd Alexander of Norton Rose categories: environmental groups, government groups Fulbright explains: “Some clients like a harsh, direct and corporations. and pushy person, while others prefer someone concilia- • Companies seek advice on reducing their carbon foot- tory and facilitating. It depends on the client and situa- print, as well as broader issues such as employment, tion.” IP and finance. As a result, it’s also important to have a • One of the most rewarding aspects of the work is that good working knowledge of other legal areas, such as it affects a large number of people, says Martella: “You general corporate law, M&A and tax. have a role to play in solving some the world’s most im- • What lawyers focus on depends on their location. portant problems. A lot of the industry focuses on mak- Washington, DC, for example, is at the heart of federal ing sure developing parts of the world provide people climate change regulation, so lawyers here are most with reliable and affordable energy in as clean a form as Practice Areas Practice likely to be involved in policy drafting. A practitioner possible. There is a social justice aspect to this.” in Texas, on the other hand, is more likely to spend • On the transactional side, no two deals are the same, their time advising fossil fuel companies on regulatory as Alexander reveals: “It is hard to create standardiza- compliance. Renewable energy work, meanwhile, is tion because every deal is so unique. It is interesting and mostly concentrated around large cities such as New challenging, as you have no form to follow on a daily ba- York, DC, Chicago and San Francisco. sis; each deal requires separate analysis and negotiation, • Geographical connections also play a part in determin- so intellectually it is very rewarding as you are constantly ing the scope of matters. For example, a lawyer based challenged and learning.” in California is more likely to be working with Asia on

123 www.chambers-associate.com Climate change and renewable energy

Rankings in Chambers USA loitte. Solar energy is seen as the leader of the pack thanks to steadily decreasing solar installation costs, which have made it a highly competitive area of the Top Ranked market. Automation is also cutting time and costs for Latham & Watkins production and operations. Highly Recommended • Various states including California, New Mexico, Illi- Baker Botts nois and New York are making efforts to decarbonize Bracewell electricity, moving away from fossil fuels. California Covington & Burling joined Hawaii in legislatively setting a goal for a car- Crowell & Moring bon-free electricity system by 2045. Nevada and Ar- Sidley Austin kansas are utilising their scorching temperatures and Troutman Sanders cloudless days by bolstering their solar capacity too. In January 2018 New York City officials announced For more detail on ranking tiers and locations, visit • www.chambers.com that it was to divest $5 billion of fossil fuel-linked money from the city’s pension fund. In 2019, Mayor Bill de Blasio also announced that the city will allocate $10 • This strand of work often involves international deals billion to combating climate change. Where this money and a lot of travel. Although that may sound glamorous, will come from is unclear. the reality is that extensive travel is exhausting, and you • In early 2020, the European Commission introduced a may need to get used to working while jet lagged. As is tax on products from countries that aren’t pulling their the nature of transactional work, schedules can be un- weight in the global fight against climate change. Yes, predictable and demanding, so Alexander tells us that that means the US. This tax could affect the country’s it’s important to have a passion for the area: “If you try business in the EU and potentially even force the US to force yourself to go into this and you are not happy to into bolstering (or appearing to bolster) its climate make the sacrifices needed it won’t be worth it. You have change initiatives and objectives. to find what the right balance is for you.” • Global corporations such as Apple and Amazon are • Climate change is also a highly contentious practice becoming increasingly interested in using and pro- area, as new regulations are likely to be challenged moting renewable energy. They are now entering into both by those who think they go too far and by those contracts to purchase energy directly from renewable who don’t think they go far enough. Roger Martella ex- energy producers, thereby helping these producers to plains that as a litigator in the field it’s important to de- operate more profitably. tach oneself emotionally from the issues at hand: “This • Numerous private equity funds have also taken an in- is perhaps one of the most emotional and passionate terest in the renewable energy sector, with a number areas of the law. On both sides people have very strong of funds putting more substantial amounts of capital views which create clashes outside of the courtroom. The into larger portfolios of renewable assets. impact goes beyond just legal issues; there is a strong • Although it is yet to fully develop its presence on the nexus between climate change law and controversies.” A market, China is seen as an emerging player in the litigator must act in their client’s interest, even if that world of renewable energy: the Institute for Energy goes against their personal views or ethics. Economics and Financial Analysis estimates that Chi- na is on track to lead global investment in the sector in years to come. China’s renewable energy capacity Practice Areas Current issues reached 2,000 GW at the end of 2019. • In a drastic departure from the Obama administration’s • For the moment we’re not seeing much change in ac- Clean Power Plan, President Donald Trump made tivity under COVID-19 conditions. Environmental and the controversial decision to withdraw from the Paris infrastructural work has a certain permanence, includ- Agreement in June 2017. By December climate change ing state involvement, which means that if it does feel had been removed from the NSS (national security the effect of a recession, it will be felt later on, and strategy) list of global threats; the US will formally nowhere near as significantly as financial and transac- withdraw from the Paris Agreement on 4th November tional practice groups. 2020 (the day after the 2020 presidential election for • In fact the pandemic lockdown has created opportuni- you keen-eyed readers). A glimmer of hope? There’d ty in this area. Several countries across the world have be nothing stopping a Democrat president from re- stopped coal-powered electricity generation altogeth- versing the withdrawal entirely. er while their economies require less energy. Could • The renewables market has continued to grow year- this change make it more likely that renewable energy on-year despite policy changes, with renewables be- sources will take the place of coal once the economy coming a “preferred” energy source, according to De- gets moving again?

124 Commercial litigation – Cleary www.chambers-associate.com

Commercial litigation – Cleary

We’ve asked Cleary’s litigators to tell you about the thrill of the wins; why mastering the art of storytelling is crucial; and how a high degree of empathy can make all the difference.

Chambers Associate: How would you define litigation? strategy in the practice of litigation that makes it both challenging and satisfying. Jonathan Kolodner, partner: At Cleary Gottlieb, we define our litigation group broadly to cover a range of dif- CA: What do the partners do? ferent practice areas, including civil litigation, arbitration, and white-collar criminal defense and enforcement. We JK: Litigation partners obviously have a range of respon- are also a global disputes practice, meaning that we sibilities. Partners are responsible for advising clients often work on matters across our 16 offices and handle and supervising litigation matters. Partners are also re- litigation and investigations that involve multiple juris- sponsible for managing the practice generally, as well dictions. And, of course, we have a significant pro bono as marketing and business development. And critically, litigation practice as well. partners are responsible for training and mentoring associates, who are the future of the firm. Thomas Kessler, associate: I think litigation is the height of strategic lawyering. In most situations, whether in our securities cases, bankruptcy litigation, arbitration, or “Junior associates are the engines of regulatory or internal investigations, we are working to any litigation.” determine facts that have already happened and figuring out how to utilize them as we work to achieve our cli- AF: The partners manage our client relationships and ents’ desired outcome. develop the strategic priorities for our litigation matters. Partners are also responsible for developing associates We also work with our transactional colleagues on cor- and providing opportunities that expose them to the porate deals and, in that respect, we get to help structure most essential skills for a litigator: drafting persuasive transactions in order to minimize or eliminate the risk of written submissions, effective oral advocacy, and suc- litigation (or at least make sure that, if litigation does oc- cessful case management. cur, our clients are in the best position to respond). PB: Partners play a range of roles, from building and Ariel Fox: Litigation is about presenting a narrative that maintaining client relationships, growing the practice, applies the facts and law in the manner most beneficial quarterbacking a case, and providing guidance and men- for your client. It means being creative and strategic and torship to associates. anticipating your adversary’s arguments, regardless of the strength of your case. Litigation also requires un- CA: What do the senior associates do? derstanding your client’s issues and priorities, so that all aspects of your work can be tied to their strategic goals. TK: Senior associates are largely responsible for the workflow of a case. They work with the partners on Pascale Bibi: Like all lawyering, litigation primarily in- strategic planning and often have significant client involves problem solving. At Cleary, we are generalists, teraction, sometimes serving as a primary contact for Practice Areas Practice and so our litigation group covers a range of practices particular issues or work streams. Senior associates also and substantive areas, including civil litigation, enforce- typically review drafts of work product (i.e. briefs, arbi- ment, bankruptcy, securities and M&A, and complex tral submissions, whitepapers, etc.) written by junior as- commercial litigation. In all these areas, the approach is sociates before they are circulated to partners and are the same – risk analysis and mitigation, strategic think- actively encouraged to ensure that the more junior mem- ing, the development of legal arguments and facts, and bers of the team receive both substantive experience effective advocacy to achieve the best result. Litigators and direct contact with partners and clients. wear many hats in their practice, from trusted advisor to full-throated advocate. There is room for creativity and

125 www.chambers-associate.com Commercial litigation – Cleary

AF: Senior associates are responsible for guiding the documents, or discussing strategy with the client or the substantive work product to completion and effectively global Cleary team. On other occasions, I will be having managing the case. This entails making sure the team discussions with, or making presentations to, regulators is meeting deadlines and alerting the partners as to the and authorities. I also spend time meeting with clients, progress and any roadblocks. Senior associates will also discussing their needs and concerns and providing guid- take the lead on appropriately delegating work to ensure ance (as best I can) to help them. that junior associates are getting opportunities to have client contact, draft, and participate in major litigation events. “There is nothing like a jury announcing a verdict in your favor…” PB: Senior associates have primary responsibility for running a matter day-to-day – anticipating next steps, AF: The excitement of litigation comes from the varia- managing workflow, developing legal arguments and tion in the type of work that crosses my desk each day. case strategy, coming up with solutions and recommen- One day might be focused on researching a particular dations, and creating work product (as well as refining issue, while the next might be spent prepping a witness the work product of junior members of the team). Senior for a deposition, or drafting a letter to the court. One of associates play a critical role in the development of the the challenges and skills of being a litigator at a firm like junior members of the team. They also handle client re- Cleary is being able to balance tasks across several busy quests and are often the primary client contact. matters at once and making sure you can give the appropriate attention to each matter and client. CA: What do the junior associates do? PB: As you become more senior, litigation strategy be- TK: Junior associates are the engines of any litigation. comes a bigger part of the day-to-day: Thinking about They often take the lead on research and, when timing the best approach to a problem, the most convincing ar- and caseload permit, funnel that work into drafted work guments, guiding research, managing workstreams, and product. A junior associate may also have the opportu- pushing a case forward. There is a lot of reading, writing, nity to try their hand at more senior-level work, includ- editing, and revising, but also a lot of discussion. In a typi- ing taking or second-seating a deposition, or being the cal day, I may consult with my associate team, the part- primary associate to prepare for a hearing. When I was ners on a case, or a joint-defense group on any number of a first-year associate, I took the lead on several motions/ strategic decisions or legal arguments in a case. briefs, including an oral argument, and was even able to take my first deposition. CA: What are the highs and lows?

AF: Junior associates are the foundation of any litiga- JK: It is always exciting to achieve a good result for a cli- tion or investigation. They are responsible for answering ent in an investigation or a dispute, such as a civil litiga- the research questions and identifying the case law and tion. But I also find it satisfying to help a client solve a facts that will drive the narrative of the case and con- difficult legal problem, to provide the answer to a ques- vince the court the matter should be resolved in your tion that a client has asked, and to help a client prepare client’s favor. Junior associates are also tasked with por- for problems in advance, by giving them the benefit of tions of briefing and preparing more senior attorneys for our experience. As you can imagine, as a litigator in the court appearances and presentations. arena (to paraphrase Teddy Roosevelt), there are some- Practice Areas times lows (and losses) as well. PB: Junior associates are critical to any litigation – they do the legal research and are often most intimately familiar with the facts. Junior associates will usually do first “A client on a recent matter was the drafts of work product, depending on the nature of the subject of a whistleblower complaint work and time constraints, and they are well placed to alleging fraud and corruption...” become subject-matter experts, leading to more substantive opportunities on a case. TK: There is nothing like a jury announcing a verdict in CA: What kind of work is involved in the day-to-day? your favor in a case you have been a part of since its in- ception. Securing an advantageous settlement might not JK: Our daily work varies tremendously; that is one of feel like the classic win, but it is often the best outcome the exciting parts of our practice. On some days, I will be for a client and a well-earned source of pride for the le- actively engaged in an investigation, often across mul- gal team. Beyond the outcome of a case, it’s always great tiple jurisdictions, conducting interviews, reviewing key to hear from a client that a brief or presentation, which

126 Commercial litigation – Cleary www.chambers-associate.com

necessarily represents many hours of hard work by the PB: My latest case was an M&A-related matter in Dela- team, was persuasive and well done. ware. Former stockholders sought extensive books and records from our client related to a take-private trans- AF: Completing a task that you have worked towards for action by a controlling stockholder, which resulted in many weeks – submitting a brief, taking a deposition or expedited proceedings culminating in a one-day trial in addressing the court – is a high, regardless of the out- Chancery Court. This is an evolving area of the law, with come. The lows are the long days that still do not feel a recent uptick in cases as shareholders seek records to long enough to complete the work you need to do. In try to plead a complaint that can withstand a motion to those moments, you rely on colleagues to share the load, dismiss. The law is very plaintiff-friendly, but we were or simply give you a morale boost. successful in getting the court to reject a majority of the requests for electronic communications. As the senior PB: The highs come in various places – winning a case or associate, I worked on every aspect of the case, including a motion, achieving a good result for a client, having an pleadings, discovery, meet and confers, pre-trial briefing, argument adopted by the court – these are all highs. So is and trial preparation, as well handling a number of the filing a persuasive brief or reading about your case in the issues at oral argument in court. news. Sometimes the facts and law are not on your side, and in those instances the small wins or concessions can CA: What’s the most interesting litigation case you’ve feel momentous. The lows can come during those times worked on? too, but they are easier to weather when you know you did your best and remember that you are all in it together. JK: It’s nearly impossible to pick a single case. I’ve worked on a number of incredibly interesting (and fast-paced) CA: Describe your latest case: what was the client’s investigations, often involving interviews and reviews in problem? What was your role? How did you spend your multiple countries, for clients who need quick answers time on it? in order to make decisions to resolve a possible crisis. It’s particularly rewarding to have the opportunity to work TK: I had a case a bit outside of my ordinary practice. closely with clients in those circumstances, and hope- We advised a company that had been threatened with a fully to guide them to an effective and satisfying reso- whistleblower suit. We worked closely with colleagues lution of whatever problems they are facing. I also love from multiple practice groups, including employee ben- the opportunity we get as litigators to spend time on a efits, capital markets, and M&A, to develop a deep under- regular basis learning about a new industry or business standing of the matter’s background, while assessing the since we need to understand how our clients operate in relevant legal issues that could come into play. We were order to represent them. ultimately able to place the client in a strong negotiating position, which led to a successful resolution of the TK: I would be lying if I said that my very first case didn’t dispute pre-litigation. have a special place in my memory. We teamed up with the Southern Poverty Law Center to challenge a conver- AF: A client on a recent matter was the subject of a sion therapy organization’s practices on the grounds that whistleblower complaint alleging fraud and corruption they had violated a consumer fraud statute. Even beyond at a subsidiary overseas. I was responsible for designing the personal passion I had for the work, the case was an and implementing the investigation plan, which included incredible opportunity to develop skills that would serve reviewing client documents, interviewing individuals in me throughout in my career – including taking a deposi- multiple countries, and presenting our findings to the cli- tion, drafting briefs, and arguing contested motions at ent and the regulators conducting the inquiry. I was also trial. in charge of managing our team of associates across four different offices to ensure that each group was car- AF: Working on the various litigations stemming from rying out their tasks according to the timeline we set at the collapse of the Madoff Ponzi scheme more than a the beginning of the project and keeping the partners decade ago has been particularly interesting because of Practice Areas Practice informed of our progress. the high-profile nature of the case and our ability to work with dozens of different law firms as part of a joint defense team. It requires an understanding of the ways in “I’ve worked on a number of incredibly which collaboration is essential to the success of the var- interesting (and fast-paced) ious actions, while keeping your client’s unique priorities investigations…” and defenses in mind. Various portions of the massive litigation are currently pending in federal bankruptcy court, district court, circuit court, and the Supreme Court, so

127 www.chambers-associate.com Commercial litigation – Cleary

the team has been exposed to litigation at all levels of party litigation funding, which aids plaintiffs in bringing the federal system. (and funding) long-term litigation.

PB: It’s hard to pick one! One of my longstanding and AF: As the world becomes increasingly automated and ongoing matters involves Madoff-related litigation. We dependent on technology, we are constantly looking for represent a number of financial institutions that were ways to leverage these developments and incorporate sued by the Madoff Trustee, as well as by Madoff feeder them into our practice for our client’s benefit. One exam- funds and investors. The matter is sprawling and spans ple is our use of key document threshold autoregressive every stage of litigation simultaneously. We won a denial (TAR) modeling, where the computer learns to classify of a motion for leave to amend a complaint last fall in documents based on a sample set of documents already one action; we are currently briefing motions to dismiss reviewed by attorneys. It increases the efficiency of our in several other actions; we are also currently briefing an document reviews and allows our junior associates to fo- appeal in other actions; and we filed a cert petition in the cus their time on other aspects of the case. U.S. Supreme Court last year after the Second Circuit re- versed one of our victories. The Supreme Court has called PB: While enforcement activity has been somewhat flat, for the views of the Solicitor General on our cert petition, civil litigation has not slowed down, and we can probably which only happens in a small number of cases each year. expect a spurt in litigation related to the economic ef- Suffice to say, the experience has been substantive and fects of the global pandemic. Cases are becoming more varied, on issues ranging from the extraterritorial appli- complex and are more likely to have cross-border flavors. cation of the bankruptcy code, international comity, the Technology has made our lives easier in some ways, but, meaning of good faith, and foreign insolvency law, and as with its effect on other areas of our lives, it has also we’ve achieved great outcomes for our clients to date. A made litigation more demanding and expansive. Associ- large litigation like this demonstrates Cleary’s strengths ates are also getting more face-to-face opportunities in and deep bench – Cleary represents several banks in the court, which is a welcome development that will benefit Madoff-related litigation and has taken a lead role in the the next generation of litigators. joint defense group, which includes hundreds of defendants, for issues being litigated on a consolidated basis. CA: What would you say the future of practicing litiga- Cleary is often at the forefront of these groundbreaking tion looks like? and significant litigations and is well positioned to play a lead role, which provides great opportunities and experi- JK: It’s always difficult to predict the future, but for now, ences internally. I think the litigation and enforcement practice will continue to grow. On the enforcement front, there is always CA: What are the current trends in litigation? a question with a new administration whether there will be a change in the government’s approach. But so far at JK: Whether we are talking about civil litigation or white- least, the U.S. authorities and regulators continue to be collar defense and enforcement, litigation continues to very active. be very active. From my perspective as an enforcement litigator, one current (and significant) trend that I see is the continued growth of multi-jurisdictional investiga- “You need to think about what will tions, as more non-U.S. authorities become active (for be persuasive and compelling for the example, in connection with corruption investigations). Practice Areas decision maker, be it a judge, jury, or arbitrator.” “As the world becomes increasingly automated and dependent on TK: Cases are only becoming more complex. Plaintiffs technology, we are constantly looking and defendants are pushing the boundaries of legal for ways to leverage these…” theories and doctrines, exploring the contours of a statute or line of cases to find a novel angle that might give their client the edge. Being on the leading edge of that There is related growth in civil litigation in the U.S. and creative thinking is exciting and a constant motivator for elsewhere connected to these investigations. For exam- enhancing my own skills. ple, a securities class action litigation in the U.S. can be based on the stock drop associated with a significant AF: I think there will be a much heavier focus on technol- new enforcement investigation. Civil litigation has also ogy, particularly how it can be leveraged in large-scale changed over the last few years with the growth of third- litigations and investigations that take place across jurisdictions. Use of this technology will require educating

128 Commercial litigation – Cleary www.chambers-associate.com

our colleagues, clients, courts, and regulators about its AF: Rather than focusing on a particular subject mat- value. ter that might be helpful for a litigator to learn, I would encourage students to focus on the skills that litigators PB: With so much noise and information out there, it will need, such as strong writing and oral advocacy, organi- be even more important for litigators to show their crea- zational acumen, and client management. Clinics and ex- tivity and incisiveness – being able to cut to the heart of ternships are a great way to get exposure to experiences the matter in a succinct and persuasive manner. AI can- that will require developing and refining these skills and not replace that skillset. I also hope litigation becomes will look more like the actual practice of law than class- more diverse, and that courts and practitioners learn to room-based learning. appreciate different styles. There are many ways to be an effective advocate, and the sooner we start to measure TK: I would encourage students to seek out any oppor- effectiveness by results and not just whether litigators tunity they can to write from a persuasive viewpoint. conform to one mode or style of advocacy, our vision and So much of what we do is writing – whether it’s emails experience of what makes a great litigator will become to partners, clients, or adversaries, or the many types of more inclusive. work product we create every day. Being able to write persuasively and concisely is critical to being a success- CA: What personal qualities make for a good litigation ful litigator and, as with all skills, it takes practice. lawyer? PB: In law school, classes like civil procedure and fed- TK: A good litigator will be curious, tenacious, and have eral courts are helpful, as well as corporations if you are excellent strategic and creative thinking. It’s also impor- interested in corporate litigation. Read a lot – about the tant to think about how your target audience will receive law but also fiction and be curious about people and the what you’re working on. What questions or concerns will world. Get comfortable with public speaking. Look for they have, and how might you implicitly respond to those opportunities to be outside your comfort zone – that will questions (or allay those concerns) in your work product? prepare you well later for the courtroom or pugnacious opposing counsel. In addition, keep calm and carry on. JK: I think the most successful lawyers are more than just smart and thoughtful individuals with strong advo- CA: What makes the field of litigation unique? cacy skills. They are proactive, engaged strategic thinkers with excellent judgment. They also care deeply about TK: Because our clients can become embroiled in litiga- their clients and are able to establish close personal tion in almost any circumstance, we’re constantly being relationships with them and truly understand their busi- asked to learn and advise on new and interesting factual nesses. scenarios – and often through the lens of new legal issues. CA: What can students do to prepare themselves for a career in litigation? AF: Because the law is malleable and constantly shifting, litigators must adapt accordingly. Sometimes during JK: There are certainly some important classes that stu- the course of a single action – perhaps even while you dents should take, such as evidence, that will be help- are drafting a dispositive motion – new case law will re- ful to future litigators. More importantly, I think students quire you to change your focus or reassess the strength should do everything they can to get real-world, on-their- of your arguments. Additionally, the unique rules of dif- feet experience, both for the experience itself and to get ferent jurisdictions can shape a case, whether in state or exposure to different areas of the practice. This might federal court in the United States or abroad. take the form of a law school clinic (such as for a legal services organization, or a U.S. Attorney’s Office), or by PB: Litigation is one of the more public-facing practices volunteering for an organization. Students can also look and has an audience. The arguments you make and the for opportunities to get similar experience during their positions you take don’t just happen on a phone call – they Practice Areas Practice first-year summer. I recommend taking trial practice (or are publicly filed and defended, and they can influence moot court) classes as well – again, it’s helpful to get as the law. A third party will weigh in on your arguments – much of this kind of experience as possible! you have to be prepared, compelling, nimble, pragmatic, and staunch in your convictions, but also know when to dial it back. It’s an intricate dance and intellectually chal- “Being able to write persuasively lenging on multiple levels. and concisely is critical to being a successful litigator and, as with all skills, it takes practice.”

129 Commercial litigation – Cleary www.chambers-associate.com

CA: Could you describe the opportunities unique to more interesting. Additionally, at Cleary a fi rst-year asso- Cleary? ciate can take a deposition, have their name on a brief, or sit at counsel’s table in court. If you show you are capable JK: Our matters are endlessly interesting and challeng- and interested in the opportunity, you will be given the ing. Many of our litigation matters are cross-border, and chance to prove yourself. we work closely with our colleagues in Cleary’s offi ces outside of the United States all of the time. In addition PB: As generalists, we get a broad range of experiences to offering all of our lawyers the opportunity to work on and exposure to different types of work. It keeps your these global matters, our litigation group is also very practice engaging and interesting, as you become an ex- fl exible, and our associates get the opportunity to work pert many times over. It also means that you can develop in all areas of the practice depending on their interests. substantively on the same case in varied ways, as you will see a case through all stages, as opposed to passing TK: When I think about my fi rst few years at Cleary, what off an appeal to another group of lawyers. We also work strikes me the most is the presumption of competence seamlessly across international offi ces; I have spent that permeated every assignment I received. I felt in- many months travelling while working on cross-border stantly trusted by my colleagues to do substantive work cases and getting to know colleagues around the world. I with real-world applications. I always pushed to do my think it’s unique to our practice to be able to handle large best but never felt like I was being made to prove myself global litigation, with each offi ce working on a piece, as before given “real work.” In my experience, and I think well as multi-faceted litigation, which we all excel at giv- in the experience of our associates generally, that pre- en the collegiality at the fi rm. Litigation associates get sumption enables you to get excellent experience very to work with many different partners, which allows you quickly, and to build on the experience much earlier in to observe different leadership styles and more authenti- your career than I think is typical. cally develop your own voice. The associates get a lot of responsibility here and substantive experience early on, AF: Cleary’s international presence draws a particularly and we often remark that we will be handling something diverse client base. Even if you are litigating in New York, where our counterpart at the other fi rm is a partner. I there is a high probability your client is not from the US, think that speaks to the trust the partners at Cleary have which often necessitates educating the client about the in their associates, and the partners’ commitment to as- federal or state court system. You’re also like to travel sociates’ professional development. internationally. This cultural dynamic makes our practice

Authors Practice Areas

Jonathan Kolodner, Thomas Kessler, Ariel Fox, ` Pascale Bibi, Partner Associate Associate Senior Associate

130 Corporate – Jones Day www.chambers-associate.com

Corporate – Jones Day

Got an urge for mergers but only know a fraction about transactions? No big deal, we got the experts at Jones Day to paint a portrait of corporate law.

Chambers Associate: Why did you choose to practice ent’s objectives in a cost-effective and efficient manner. in this area? It’s also up to partners to develop the talent on the team, both internally and at the client, with a focus on ensuring Adam Cromie: M&A transactions move at breakneck our clients are making informed decisions. speed. To keep up, I’m often in the trenches with our clients working through business issues in real time. It’s exciting and engaging. We’re all pulling in the same direc- “Jones Day works on plenty of tion to meet a common goal, and the team feels a sense ‘atypical’ transactions, and the deal of accomplishment when it solves a difficult problem. team isn’t necessarily a hierarchy.”

Stephanie Breitenbach: When selecting a practice area, I was advised to observe the work done by mid-level as- CA: What do associates at each level do? sociates in a particular practice and consider whether I was interested in that work. Looking up to mid-levels as a AC: Jones Day works on plenty of ‘atypical’ transactions, new lawyer, I was excited about not just the type of work and the deal team isn’t necessarily a hierarchy. The best I saw, but also that work of such substance could be in associates, irrespective of seniority, roll up their sleeves my near-term future. and attack any task that will move a deal forward for our client. Most junior associates interact with partners and Randi Lesnick: An M&A lawyer is typically the quarter- clients from day one as an M&A lawyer. It’s not uncom- back on a transaction and works collaboratively with the mon for a junior or mid-level associate to take a lead deal team – our internal team as well as the client’s team and team role if the situation calls for it and the associate is other advisers. M&A is extremely collaborative and fast- prepared. paced, which I enjoy. Joanna Sutton: In general, junior associates are expect- CA: What is a partner’s typical role in matters? What ed to take ownership of the due diligence process, dis- kind of work is involved day to day? closure schedules and other ancillary documents. Mid- level and senior associates are responsible for managing AC: If a senior associate is the deal team ‘quarterback,’ the deal team, drafting and negotiating key transaction then a partner is the ‘coach.’ The partner sees the whole documents and communicating with the client on day-to- field and designs a plan for the deal team. That primar- day transaction matters. ily means understanding our client’s strategic objectives and implementing the most effective means to accom- Dotun Obadina: Due diligence is the process of evaluat- plish them. Like any good coach, Jones Day partners ing the operations of the business to identify risks of a are constantly communicating with the deal team, re- transaction by investigating the obligations and liabili- assessing strategy and efficiently deploying the firm’s ties of the selling company. Even when representing the resources. Most important, our partners love to teach, seller, doing sell-side due diligence is important to gain Practice Areas Practice and they spend substantial time educating our clients an understanding of the selling company’s business and and our associates about the legal issues implicated in the obligations and liabilities of the selling company. On a transaction. the buy side, due diligence is critical. Due diligence helps the buyer understand the key risks of the transaction, al- RL: M&A partners are responsible for advising the board lows the buyer to value the business appropriately and to of directors and partnering with the client to under- consider transaction structures and terms that will pro- stand their objectives. The M&A partners then lead the vide for an appropriate allocation of pre- and post-closing multidisciplinary team across geographies to structure, liabilities of the business. negotiate and execute the transactions to meet the cli-

131 www.chambers-associate.com Corporate – Jones Day

SB: Depending on the size and complexity of a deal, there RL: We commit all of our firm’s resources to each of our may be either or both a mid-level associate and/or a sen- clients, and we put client interests above all else. This, ior associate. The mid-level and senior associates typi- together with our global footprint, collaborative culture cally draft the main transaction agreement and negotiate and ability to execute seamlessly across geographies, other material ancillary agreements (e.g. nondisclosure differentiates us from our peers. We view our relation- agreements). They will also oversee junior lawyers and ships with clients as partnerships, aimed at helping our serve as principal advisers to the client. clients attain their goals. Every member of a deal team is valued and plays an important role. CA: How would you describe Jones Day’s M&A practice? “A good M&A lawyer is a shapeshifter, AC: The Jones Day M&A practice partners with clients to capable of understanding a client’s tackle complex problems in a variety of industries and goals and adapting to meet them in the across borders. Our clients choose us because they need most effective way possible.” a firm that combines a personal touch with substantial resources and experience in markets, legal and regulatory systems and cultures around the world. We specialize CA: Where can new associates expect to be in five in solving complicated problems that others can’t tackle. years?

SB: We advise companies ranging in size and structure SB: After five years as an M&A associate, you will ap- (from founder-led private companies to public companies preciate how far up the steep learning curve of M&A you with market capitalization of over $100 billion) on various have climbed. You will feel gratified that you have learned corporate matters, including take-private transactions, enough that you can now see the forest through the carve-outs, bankruptcy sales, board/special committee trees. On the other hand, your growth and understanding situations and takeover defense. Our clients are leaders will allow you to truly appreciate the complexity of M&A in a wide array of industries, including manufacturing, transactions and will spur a newfound excitement for chemicals, retail, technology and pharmaceuticals. the practice. Your days will vary widely and include time spent drafting documents, advising clients and thinking RL: We understand our clients’ businesses and structure about solutions to complex legal and business issues. transactions to meet their needs while offering practical advice. Our M&A lawyers are also strategic advisers to RL: Five years out, associates should be actively involved boards of directors and management to help them navi- in drafting and negotiating transactions. They would be gate complex business decisions, engage with share- wearing many hats: resource to our junior people, right holders and evaluate corporate governance issues. hand to our senior people and practitioners focused on developing their drafting and negotiation skills as they CA: What separates the Jones Day team from its peers? continue to learn and grow.

AC: One Firm Worldwide isn’t just a motto at Jones Day. It CA: What qualities make for good M&A lawyers? truly describes the way that we service our clients. Many transactions that I work on are staffed with attorneys AC: A good M&A lawyer is a shapeshifter, capable of un- from around the world and across disciplines to ensure derstanding a client’s goals and adapting to meet them Practice Areas that our clients receive the best possible advice to solve in the most effective way possible. Each deal or client their particular problem. The Jones Day team excels at may require a different approach. However, deals almost recognizing a client’s needs and finding the resources to universally require critical thinking, attention to detail efficiently meet them from a deep bench of experienced and efficient and timely communication. The most impor- attorneys. It doesn’t matter where in the world those re- tant quality at all levels of practice for an M&A lawyer sources are located. is an interest in business and the laws governing M&A. There is no substitute for enthusiasm and curiosity. SB: From an associate’s perspective, Jones Day is distin- guishable from its peers for its “flat” deal team struc- JS: No matter how small or large a role you play on a par- ture. Associates, even at junior levels, have significant ticular transaction, it is critical that you understand how substantive work exposure to partners and senior asso- the responsibilities you are given fit into the bigger pic- ciates. I have found that, as a result, opportunities to take ture of the transaction and the client’s overall goals. This on increasingly challenging work are abundant. will allow you to approach the transaction strategically, spot potential issues and develop creative solutions.

132 Corporate – Jones Day www.chambers-associate.com

DO: Good M&A lawyers are great at managing projects, “Bringing home a deal for a client in a have a vast understanding of corporate law, are able to way that delivers value and protects the understand the details and the bigger picture, exercise client’s interests makes the hard work great judgment, communicate effectively with the client and long hours worthwhile.” to ensure everyone is on the same page, understand the goals of the client, and are responsive. CA: What are the highs and lows in this area? CA: How do you see the market evolving in the next few years? AC: The highs are simple – guiding our client to an executed transaction. Numerous people work for months, SB: I expect that shareholder activism will increasingly and sometimes years, to effect a single transaction. Dur- drive M&A strategy and activity and continue to affect ing that time, the deal team has typically discovered and board representation and composition. Additionally, I worked arm in arm with the client to resolve several is- expect that divestitures and spinoffs of assets deemed sues that would have otherwise derailed the transaction. nonessential will continue as companies refine their op- Bringing home a deal for a client in a way that delivers erations and portfolios. value and protects the client’s interests makes the hard work and long hours worthwhile. Conversely, it can be RL: Given the rise and continuation of shareholder activ- disheartening if the work doesn’t lead to a transaction. ism, we are likely to see an increasing number of spinoff transactions and bolt-on acquisitions aimed at aligning SB: The months, weeks, days and hours leading up to a a company’s core strengths. Private equity and alterna- transaction signing become progressively more intense, tive capital providers will continue to play a critical role in intellectually challenging and fast-paced, and the mo- transactions in the next several years and will materially ment when the transaction ultimately signs is an adren- impact valuation in many respects given the significant aline-filled high. On the other hand, the unpredictability amount of dry powder available to be deployed. and highly variable nature of deal flow are challenging aspects of an M&A practice, and the ability to manage CA: What are the current trends affecting this market? that inconsistency is a learned skill that takes time to develop. JS: In the last year or two, shareholder activists have played a more significant in the M&A landscape, oppos- DO: The highs are the varied nature of the work. You are ing announced transactions and pressuring companies working in several different industries, like manufactur- to pursue specific acquisitions or divestitures. I expect ing, pharmaceuticals, software, consumer goods, retail, this trend will continue as the number and influence of etc., and in each deal there is a different driver, whether shareholder activists grow, adding another layer of com- it’s an environmental, regulatory, intellectual property, plexity to transactions involving public companies. tax, inventory, employee benefits or other issue. This is incredibly fascinating as you are exposed to – and are SB: Uncertainty has recently defined the M&A market expected to understand – so many different areas of law. on a macro level, stemming from unpredictable political and regulatory landscapes worldwide. We have also seen CA: What advice would you give to students interested an increasing prevalence of representations and warran- in the area? ties insurance (RWI), which has brought with it a shift in transaction structures and risk allocation. Because RWI SB: Do not be discouraged from pursuing an M&A prac- shifts certain transaction risks from the seller to the in- tice due to a lack of finance or accounting background. surer, it is also often true in RWI deals that the represen- A basic accounting class will give you the tools you need tations and warranties are negotiated to a lesser degree to get started. In law school, be sure to take a course on than traditional indemnity deals. corporate law, and also consider a course on securities regulation. Practice Areas Practice RL: Uncertainty is affecting the market in a number of ways. The market is facing geopolitical, economic, trade DO: Understand that the learning curve is steep. You re- and other regulatory uncertainty, increased levels of ally have to want to do M&A to do it appropriately. This shareholder activism and (at the time of writing, at the profession rewards curiosity in terms of following deals height of COVID-19) a pandemic of unknown proportions. happening in the market and issues/changes in law re- All of those factors are resulting in a slowdown in activ- lated to M&A. ity as businesses across the globe reassess risk and are reevaluating the rationales for transactions. RL: Don’t be intimidated by M&A. There is a steep learning curve, but with each matter you work on, you start

133 Corporate – Jones Day www.chambers-associate.com

to anticipate next steps and recognize what comes up often: any matter you work on will give you some additional insight into another area of the law; you will always be learning. I think it is important for lawyers to always understand why something is in a transaction agreement so that they can explain why it should be there. Always say yes when you can. The more available you are to take on new assignments, the more experience you will have and the more value you will bring to a team you are on. If you are known to say yes, it makes it easier to say no when you need to.

Authors

Randi Lesnick Dotun Obadina Stephanie Joanna Sutton Adam Cromie Partner Senior Associate Breitenbach Associate Junior Associate Associate Practice Areas

134 Corporate/M&A www.chambers-associate.com

Corporate/M&A

In a nutshell • Build a ‘road map’ for the client from start to finish, and Corporate is often thought of as a ‘one size fits all’ prac- include a timeframe. tice area, including everything that isn’t exclusively liti- • Advise on deal and negotiating tactics. gation or tax. However, cream of the crop BigLaw firms • Conduct due diligence on the other side. typically focus their corporate work on M&A and corpo- • Determine – with the help of tax attorneys – the tax im- rate governance. Some firms also include capital mar- plications and if they require special structuring. kets and private equity, but those practices are so vast • Work with antitrust attorneys to assess regulatory in their own right, we’ve decided to treat them to their obstacles, gain regulatory approval and analyze any own page. other required regulatory approvals. • If cross-border, work with local counsel. Review all the A lot of corporate work sees lawyers counseling clients client’s contracts: business, employment, outsourcing, from cradle to grave: from their initial startup, through debt instruments, preferred stock, etc. raising capital, going through mergers and acquisitions • Obtain third party consents from lenders or parties to to helping companies with day-to-day issues once they other contracts. become operational. • Negotiate agreement, sign, announce publicly, close the deal. Public M&A is the name of the game for some firms, who • Attorneys for the target decide whether to negotiate, advise either the buyer or seller in their transaction with refuse the buyer’s overtures, sell, or do a deal with an- a public company. A company is considered ‘public’ if other company. anyone who has a share in the company is considered an equity owner. These transactions are usually the highest value and often involve cross-border jurisdictions “If you’ve gotten the idea that it sounds good on paper, or is remunerative Private M&A, on the other hand, occurs between private or prestigious, that won’t carry you companies. Private companies do not trade shares on the through; you actually have to find it stock market and are subject to less rigorous regulation than public companies. As a result, these transactions interesting.” tend to involve stock or cash considerations, too. Realities of the job Corporate governance means lawyers advise companies • “The most important thing for a corporate lawyer is to on issues concerning the board of directors and their rela- develop an understanding of what’s most important to tionship with shareholders. A corporate governance law- your client – what they are really trying to accomplish yer is typically called in to handle shareholder disputes. and what issues really matter to them and why,” explains Victor Lewkow of Cleary Gottlieb Steen & Hamilton. “I think what surprised me the most • Robert Townsend of Cravath, Swaine & Moore is how much I actually enjoy being a LLP highlights some of the characteristics common corporate lawyer. I had no background of those working in corporate/M&A, which include or experience in business, but being “driven and motivated to maintain a high level of quality. You need to be intellectually curious in order to quickly discovered that mergers and identify issues, but also practical so that you can figure acquisitions was an interesting and out how to best solve those issues – that’s where we add Practice Areas Practice challenging practice that I found fun – value.” and still do.” • An M&A transaction can have “a whole laundry list of tactics to choose from and issues to consider, depending upon what side you’re on,” says Alison Ressler of Sul- What lawyers do livan & Cromwell, meaning that no two deals are ex- Public M&A for buyer actly the same. Similarly, each deal will have a unique • Identify the client’s business objectives. life-cycle and so some will naturally take longer to • Identify the legal issues – these vary depending on fac- complete than others. tors like whether the deal is friendly or unfriendly.

135 www.chambers-associate.com Corporate/M&A

Rankings in Chambers USA

Top Ranked Highly Recommended Alston & Bird Akin Gump Strauss Hauer & Feld Cooley Allen & Overy Cravath, Swaine & Moore Arnold & Porter Davis Polk & Wardwell Baker Botts Dechert Bracewell Dorsey & Whitney Cadwalader, Wickersham & Taft Foley & Lardner Choate Hall & Stewart Gibson, Dunn & Crutcher Cleary Gottlieb Steen & Hamilton Goodwin Clifford Chance Greenberg Traurig, PA Covington & Burling Holland & Knight Crowell & Moring K&L Gates Debevoise & Plimpton King & Spalding Duane Morris Kirkland & Ellis Dykema Gossett PLLC Latham & Watkins Foley Hoag Morgan, Lewis & Bockius Fox Rothschild Morrison & Foerster Freshfields Bruckhaus Deringer Nelson Mullins Riley & Scarborough Fried, Frank, Harris, Shriver & Jacobson Perkins Coie Haynes and Boone Reed Smith Jackson Walker Ropes & Gray Jenner & Block Sidley Austin Katten Simpson Thacher & Bartlett Mayer Brown Skadden, Arps, Slate, Meagher & Flom & Affiliates Milbank Sullivan & Cromwell Mintz Levin Cohn Ferris Glovsky and Popeo PC Troutman Sanders Munger, Tolles & Olson Venable Orrick, Herrington & Sutcliffe Vinson & Elkins Paul Hastings WilmerHale Paul, Weiss, Rifkind, Wharton & Garrison Wilson Sonsini Goodrich & Rosati Pillsbury Winthrop Shaw Pittman Proskauer Rose Schulte Roth & Zabel Seward & Kissel Shearman & Sterling Sheppard, Mullin, Richter & Hampton Thompson & Knight Vedder Price Weil, Gotshal & Manges White & Case Willkie Farr & Gallagher Winston & Strawn Practice Areas

For more detail on ranking tiers and locations, visit www.chambers.com

• A key part of M&A work is explaining issues in a way side are saying in negotiations in order to know how to that makes sense to the client. “Lawyers often use enor- modify your strategy accordingly.” mous amounts of jargon, with great expertise and com- • Due diligence will largely fall to associates and, plexity, which is not necessarily helpful for the business though it can be tedious, it’s crucial for attorneys to people involved,” Lewkow tells us. He adds: “Often there understand what’s in the documents. “Law students is no perfect answer, so some of the time you’ll be help- tend to think of us as just reading and marking up docu- ing the client figure out what the least ‘bad’ alternative is.” ments, but a key characteristic of a top corporate lawyer • Townsend adds: “You need to have the ability to articu- is the ability to negotiate and construct arguments on late your position in a way that is clear and concise so your feet,” states Ressler. that a business person can understand. It is also impor- • Delaware, where many corporations are incorporated, tant to listen carefully to what your client and the other has among the most pronounced and expansive laws

136 Corporate/M&A www.chambers-associate.com

on the duties of the board and rules concerning spe- If we forget the many negatives for one second, there cial committees, which have tremendous implications is potential for optimism in how the pandemic has intro- for M&A transactions and corporate governance work. duced commercial efficiencies and positive changes in our Lewkow confirms: “Many of the corporate law court de- working lives. Will a working-from-home culture be more cisions in Delaware influence how we address problems prevalent once the pandemic is over, seeing a sustained and generally go about structuring transactions.” dependence on tech products as central to our everyday • Public companies, particularly those in the Fortune lives? Tech is one of the few transactional sectors that so 500, are slick operations with considerable legal far hasn’t shown a reduction in headcount and we expect budgets and expertise, and usually need less hand- this sector to be more resilient during the recession. holding than smaller, less sophisticated clients. • The high-pressure nature of the work is a result of “not only having the chance to be involved in issues that are Top career tips very important to your client, but also making a genu- George Bason Jr, partner, Davis Polk & Wardwell: ine difference to those issues,” says Adam Emmer- “The key to it is that law is a service profession. I think all ich of Wachtell, Lipton, Rosen & Katz. personality types are welcome, but having that availability • “Many deals have a lot of moving pieces, whereby solving and enthusiasm 24 hours a day, 365 days a year is very im- one problem could actually create another problem,” ac- portant – once you accept that as a baseline it’s a wonderful cording to Lewkow. “What works well for IP purposes, profession. And, with a few exceptions, clients treat their for example, might not work well for tax purposes.” lawyers with respect and view them as a valued part of the • Clients often expect transactions to be completed in team. It’s such a human thing, but a lot of people lose sight a matter of days, which can mean working 18-hour of the fact that it’s a service business.” days and weekends. This expectation can create an atmosphere of cooperation and expediency among Alison Ressler, partner, Sullivan & Cromwell: parties. “You break down the walls between who’s doing “There are three primary courses that students who are in- what, and just dive in and do it,” Josh Bonnie of Simp- terested in corporate law should take. Securities regulation son Thacher & Bartlett says. is key – you need to understand securities law and what’s in- • It also means that flexibility is key. “Sometimes you may volved in issuing securities. A general corporate law course have a plan to go on holiday, then find out that you need explains the different forms of corporate entities and how to be on the spot and fully engaged,” says Emmerich. federal and state regulations affect mergers. A business However, this comes with the territory of it being “a combinations or mergers class teaches the case law on dynamic, interesting and exciting practice.” mergers and the difference between hostile and friendly • “I don’t think there is one style which makes you an ex- takeovers. Two key ancillary courses are corporate income cellent or effective M&A lawyer,” explains Louis Gold- tax and accounting for lawyers.” berg of Davis Polk & Wardwell. He adds that at one end of the spectrum you have those who are “thought- “The best thing law students can do in preparation is read ful, determined and tactical,” while at the other end the Financial Times and The Wall Street Journal while in there are the ‘deal junkies’: “They have the charisma law school. Those papers will really give you a sense of and love the ins and outs of the deal climate.” what’s happening in the business world.” • The broader category of corporate finance includes representing borrowers in lending transactions with Adam Emmerich, partner, Wachtell, Lipton, Rosen & banks, though most firms organize themselves so that Katz: the lawyers who advise the lenders and borrowers are “Like most things in life, if it’s your passion and you find it part of the banking and finance team. engaging then it’s relatively easy to do well. If you’ve gotten the idea that it sounds good on paper, or is remunerative or prestigious, that won’t carry you through; you actually have The state of the market to find it interesting.” M&A has fallen victim to COVID-19. Acquiring other com- Practice Areas Practice panies is the kind of luxurious pursuit companies get into Victor Lewkow, senior counsel, Cleary Gottlieb Steen while the sun shines, but now the corporate focus is on & Hamilton: sitting tight and prioritizing cashflow over growth. Until “I think what surprised me the most is how much I actually the pandemic hit, we had a buoyant global transactions enjoy being a corporate lawyer. I had no background or ex- market, with particular growth in private equity. The valu- perience in business, but quickly discovered that mergers ation of vulnerable companies will be lower under these and acquisitions was an interesting and challenging prac- conditions, which is likely to see some opportunistic ac- tice that I found fun – and still do.” quisitions favoring the cash-rich – acquisition finance will be less accessible.

137 www.chambers-associate.com Derivatives and securitization – Allen & Overy

Derivatives and securitization – Allen & Overy

There’s nothing derivative about the life of a lawyer in this multi-faceted area – our sources at global firm A&O demystify this their practice.

Chambers Associate: Can you sum up what the deriv- clients, and other days I am on my own at my computer atives and securitization teams at Allen & Overy do? for the entirety.

Daniel Resnick, associate: Our securitization team At the moment I have six billable projects and one pro regularly advises arrangers, originators and trustees bono project in play. Two of these projects involve deal- on transactions involving a wide variety of asset classes ing with clients and collateral custodians, three are and structures. These include ‘true sale’ and synthetic memos to be sent to clients outlining the regulations securitizations, CLOs [collateralized loan obligations], applicable to products they are considering offering, CDOs [collateralized debt obligations] and the establish- and one is a diligence assignment concerning the nova- ment of securitization programs. In terms of derivatives, tion of a swap as part of a corporate restructuring. Most our work covers all the major product types (exchange- of my day is my own to schedule. traded or centrally cleared, OTC [over-the-counter] and securities). Our securitization team works regularly DR: Associates on the securitization team advise cli- with the derivatives team to ensure clients’ transaction ents on regulations relating to securitization transac- needs are met and complex structures can be success- tions, which include US risk retention rules, the Volcker fully completed. Our group is known for our interna- rule and Regulation AB. Additionally, associates help tional innovation, which includes work on Greece’s first draft transaction documents for companies that are private sector securitization; advising on the first auto looking to securitize their assets. Day-to-day work in- loan securitization in the Middle East; and developing volves writing memos about securitization-related the first UK master trust structures. regulations and how they affect our clients; reviewing documents while checking for consistency and errors; Sandy Tapnack, associate: Our derivatives team advis- drafting closing documents for transaction execution; es on complex and bespoke derivatives and structured and conducting research relating to updates in the finance transactions for clients, and also advises on field of securitization for both internal and client use. regulatory obligations relating to the same. Our securitization team, meanwhile, advises on note issuances CA: What are the high points of practicing in this backed by assets that produce cash flows. We advise a area? wide range of clients, including banks, financial institu- ZS: The highs are definitely the range of work we get tions, corporates and funds. The teams work together to do and the number of jurisdictions our matters impli- when a deal requires the expertise of both strands (e.g. cate. I am on matters at the moment with teams from a securitization deal may involve a currency or interest Tokyo and London, and they really make me feel like Practice Areas rate swap). I’m in a unique firm that offers multijurisdictional advice that other firms simply can’t offer.

“My day-to-day involves responding DR: Getting to work on exciting and cutting-edge trans- to client inquiries and balancing actions, in addition to being able to work with more sen- anywhere from two to eight projects at ior associates and partners routinely to gain hands-on a time.” experience and retain invaluable career advice. ST: The highs are closing deals, anticipating clients’ CA: What do associates do? issues and solving them, and working with great col- Zach Sinemus, associate: Associates have a lot of cli- leagues. ent interaction. My day-to-day involves responding to client inquiries and balancing anywhere from two to CA: And the lows? eight projects at a time. Some days I spend hours on ZS: The lows recently have come from the degree to the phone with other associates and/or partners and/or which our group has been focused on margin work. We

138 Derivatives and securitization – Allen & Overy www.chambers-associate.com

cornered the market on sell-side margin regulation work “Understanding the underlying (i.e. variation margin CSA negotiations, and initial margin products makes it easier to understand CSA/CSD/CTA, ACA, and ECS negotiations) which has why regulations have been written the been both a blessing and a curse – it’s been very exciting way they have been or why financings to be the firm to go to for margin work for some of the biggest swap dealers, but it has also been quite tiring to are structured the way they are.” be so focused on a particular regulation. CA: What opportunities in derivatives and securitization are unique to Allen & Overy? “Most of the work that I do is focused ZS: The opportunities unique to A&O come from our on Dodd-Frank regulation, which is still cross-border work. For instance, the US margin regime is relatively new to the market.” only one of many margin regimes worldwide – our clients were able to come to us as a one-stop shop for all of their margin work, as we were able to coordinate among our ST: The lows are the long hours. offices so as to provide advice and transactional help to clients who are subject to multiple regulatory regimes. CA: Which factors are currently driving securitization work and the derivatives market? CA: What advice do you have for students interested ZS: There are constantly new regulations either being in this area? introduced or being phased in. Most of the work that I do ZS: Take a securities or structured finance course in law is focused on Dodd-Frank regulation, which is still rela- school and do your best to understand the underlying tively new to the market. projects and purpose of the products you wish to cover. It’s possible to negotiate a CSA (Credit Support Annex) DR: Some of the factors currently driving our work in- or indenture in a vacuum, but it’s much easier when you clude: (1) concerns over the status of LIBOR and the understand what the purpose of a hedge is, or the ways ramifications that would arise if LIBOR ceases to exist, different products add risk to the market. Understanding (2) a push to simplify the disclosure regimes surrounding the underlying products makes it easier to understand asset-backed securities; and (3) risk retention and Vol- why regulations have been written the way they have cker compliance. been or why financings are structured the way they are, which in turn makes it easier to provide proper advice or CA: How can students and associates keep up to date identify relevant issues. with these trends? DR: Students and associates can keep up to date with DR: It is also helpful to speak with associates who are securitization trends by attending securitization and currently working in the field to gain more insight into structured finance seminars, partaking in industry calls what derivatives and securitization work involves. that discuss the latest securitization trends, conducting online research, reading external posts/updates/memos CA: Where can new junior associates expect to be in by Allen & Overy and on fellow BigLaw firms’ websites, five years’ time? and speaking with peers. DR: Junior associates can anticipate rising to more senior positions on their team, which will give them the op- ZS: Everyone can follow press releases from the CFTC portunity to be in charge of transactions and work more [Commodity Futures Trading Commission] and SEC [Se- hands-on with A&O clients. They can also anticipate get- curities and Exchange Commission], which I would recting to work at another A&O office or a client through ommend doing if you are interested in following devel- secondment, or possibly getting an opportunity to work opments in the derivatives regulatory space. Law firms for the government (as a number of A&O attorneys have (A&O included) also regularly put out client alerts or done recently). publications aimed at identifying major developments in Practice Areas Practice these spaces. I will also plug aosphere (an Allen & Overy ZS: Exit opportunities include going in-house to a bank affiliate), which provides “advanced delivery” (i.e. legal or other financial institution, but we have had associ- updates or overviews of regulatory regimes tailored so ates leave to go work for government agencies or for as to be digestible by non-lawyers). more specialized firms as well. We also have a number of international capital markets/derivatives & structured finance associates who have been with A&O for seven- plus years, so it’s also quite conceivable that junior associates will still be with A&O five-plus years into their tenures.

139 Derivatives and securitization – Allen & Overy www.chambers-associate.com

Authors

Daniel Resnick Sandy Tapnack Zach Sinemus Associate Associate Associate Practice Areas

140 Emerging companies – Gunderson www.chambers-associate.com

Emerging companies – Gunderson

Working with startup clients is a whole other game to serving long-established companies, from the challenges that they face to their level of legal know-how. Four lawyers share the ins and outs of what it’s like to work for these innovative clients as part of the emerging companies practice at Gunderson.

Chambers Associate: How would you define Gunder- activity means that we often are at the forefront of the son’s emerging companies practice? latest happenings and trends in the emerging growth space. We also have a strong understanding of what is Julie Mahoney, associate: We primarily work with early- standard for transactions in this space and what is re- stage startup clients in technology-focused industries. quired to get deals done in this space, and we know many Our clients have a wide range of concerns, but the most of the players. This often enables us to close transactions common has to do with legal issues related to financing, relatively quickly and with fewer resources, which is well IP ownership and licensing issues, and issues that could suited and attractive for venture capital firms and start- pose a problem in a potential acquisition. up companies.

Marna Pattaropong, partner: Our practice is broad. We JM: We see ourselves as narrowly tailored to the spe- work with clients in all industry sectors: life sciences, cific needs of our clients (as opposed to the “department software and SaaS (Software-as-a-Service), hardware, store” model of a larger firm). We are excellent at 95% Big Data and AI, social networking, consumer products, of what our clients need and we refer them to experts clean technology, and others. Our clients are at various for the areas we do not specialize in (i.e. litigation, certain stages in the business life-cycle. We have early-stage specific regulatory issues). clients with founders just finishing school and looking forward to finally having the opportunity to work on their ventures full time, but we also have a lot of later-stage “I enjoy the challenges of working with clients who have gone through several rounds of financ- companies with novel and big ideas, ing and perhaps have even gone public. I am in the IP & but limited resources.” Tech Transactions group at Gunderson Dettmer. I assist clients with their strategic partnering relationships, making sure that they’ve thought through business issues CA: Why did you choose this practice area? like whether the proposed arrangement will allow them to maximize their business potential and meet existing MP: Because I enjoy the challenges of working with com- obligations with their customers and partners, and mak- panies with novel and big ideas, but limited resources. ing sure that their intellectual property is protected, that I love the passion of the founders and employees for their liability is reasonably limited, and that other legal these companies and their ideas, and their outside-of- requirements are being met. the-box thinking and willingness to change. I like feeling as though I am a part of something big, which is the feeling that I get in working with many of our clients and “There is a buzzing energy in this space their teams. Practice Areas Practice that gives the practice of law a similar vitality.” Laura Stoffel, associate: I’ve always been interested in the startup ecosystem. There is a buzzing energy in this space that gives the practice of law a similar vitality. CA: What is unique about Gunderson’s emerging companies practice? CA: What are the roles for associates and partners?

MP: Gunderson Dettmer is focused entirely on the Jeff Liu, associate: Unlike my prior experience, I think emerging growth marketplace. This focus and level of Gunderson’s practice is very client-facing, so you are

141 www.chambers-associate.com Emerging companies – Gunderson

often the first person your clients come to when they “We work in an evolving space with have an issue. As a junior associate, this means your role new regulations continuously coming is to triage for potential issues, and then escalate them down the pipeline.” as necessary to senior members of your team. For me, transitioning into a senior associate means more of a project management role, such as supervising junior associ- MP: The laws and regulations governing our clients’ busi- ates and reviewing, devising and implementing solutions nesses often can’t keep up with the fast pace at which for client issues. The teams that we work with here are the technologies and business models of our clients smaller, and we work pretty collaboratively. Oftentimes, change. As a result, it can sometimes be challenging to the problem solving involves input from both associates determine the impact of these laws and regulations on and partners. our clients and how best to comply with them. It is even more challenging to help a client when the amount of resources they might have for achieving compliance with “Our clients are at the forefront these laws and regulations is limited. of technical advances… we as lawyers have to be able to adapt LS: We work in an evolving space with new regulations and understand new changes in continuously coming down the pipeline. We need to stay one step ahead so that we can serve our clients effec- technology.” tively. Looking at the last few years alone we’ve seen a variety of new regulations that affect our clients, such as MP: Our associates play big roles in meeting the legal the California Consumer Privacy Act, the General Data needs of our clients, and they are great at filling these Protection Regulation, the pilot program conducted roles. I think that our clients appreciate the level of ex- by the Committee on Foreign Investment in the United pertise and experience that our associates generally States and the Massachusetts Noncompetition Agree- offer, given the clients’ sometimes limited resources. ment Act. We are continuously refining our expertise in As partners, we invest quite a bit of time in making sure these new and evolving areas. that our associates receive great training, both through Gunderson Dettmer-tailored classes and on-the-job experience, so that they have the tools that they need to ef- “Some of my favorite deals have been fectively and confidently take the lead on more complex with hard-science clients, like clients in projects earlier in their careers. the space/commercial satellite industry and clients in cutting-edge biotech LS: At Gunderson Dettmer, partners and associates collaborate closely and there is considerable overlap be- fields.” tween our roles on any given deal. Our partners are the foremost experts on the types of issues faced in the CA: What do you enjoy most about your work? global venture capital and emerging technology mar- ketplaces. We work together to identify key issues and JM: I like working with exciting and creative clients identify solutions that will provide the best outcomes for working in tackling new business areas or technolo- our clients. gies. Because our clients are very small, we work closely with founders and executives at the client rather than Practice Areas CA: What are the biggest challenges for lawyers and in-house counsel (most are not large enough to have in- their clients in this market? house lawyers). We also get to deal with a lot of different kinds of problems on a day-to-day basis so I’m always JM: Our clients are early-stage startups, which is inher- learning something new. Additionally, we get a chance ently risky. Instead of focusing on all possible risks, we to advise our clients on business strategy since many are focus our guidance on the most important risks that are early-stage and relatively inexperienced. I get to work on likely to actually have an adverse impact on our clients’ really interesting and novel deals and with clients work- business or significantly increase the baseline risk they ing in interesting and novel technologies. Some of my already face. Also, our clients are at the forefront of favorite deals have been with hard-science clients, like technical advances so both our clients and we as lawyers clients in the space/commercial satellite industry and have to be able to adapt and understand new changes in clients in cutting-edge biotech fields. technology. LS: My colleagues and clients. If you don’t look forward to going to work, then it may be time to consider a different path. My clients consider me a core member of their

142 Emerging companies – Gunderson www.chambers-associate.com

team and I wouldn’t want it any other way. I am invested volved can be challenging, especially given the fast pace in what each client is trying to achieve and look forward at which everyone seems to be moving! to celebrating their successes and tackling new challenges. “Geographically, venture capital is expanding outside of the traditional “We’re often asked to resolve novel nexus of the Bay Area to areas like New problems by crafting bespoke and York.” creative solutions.”

LS: Companies are staying private longer and many are JL: I enjoy interacting with my clients on a daily basis. exploring whether direct listings may be a viable alterna- Often clients consider me as an adviser to the business tive to traditional IPOs. This new dynamic calls for differ- rather than a service provider, so it’s fulfilling to be able ent funding approaches and investment models. In the to help see their business grow and succeed. And, as is next few years, we will see whether direct listings be- commonplace in venture capital, we’re often asked to re- come the new norm in the basket of potential exit strate- solve novel problems by crafting bespoke and creative gies for our clients. solutions. JL: The venture capital industry is definitely growing and CA: How should lawyers build a career in this market? maturing. Geographically, venture capital is expanding outside of the traditional nexus of the Bay Area to areas MP: I think that it is important to try to obtain as much like New York. The expansion is not only limited to emerg- experience as possible in relation to this space, and to ing growth companies and venture capital funds, but also learn as much as possible about this the startup industry, more mature and established technology companies like whether through an internship with a startup company, Google and Facebook, which have a beachhead already or attending related seminars and networking events. A in New York, but are dramatically expanding their foot- big part of being successful here is being comfortable print. With the venture capital industry becoming more with constantly having to learn, being flexible and open mature, there are more traditional sources of capital, to change, and being passionate about the space (so that such as institutional investors that don’t typically invest the constant learning and change seem fun). in early-stage companies or venture funds, that are also focusing on and deploying capital in this space. It’s all LS: Trust and expertise. If you are a great lawyer and quite exciting. have earned the trust of your clients then you will have no problem building a career in this market. We are first CA: Do you have any career-defining moments? and foremost advisers to our clients and since we are in the service industry we need to provide outstanding ser- MP: I have a few of them, but the one that had the great- vice. This means being available, identifying core issues est impact was studying chemical engineering at MIT. It and advising on a path forward that best suits a particu- was humbling and inspiring to be surrounded by so many lar client’s needs. It is not a ‘one size fits all’ model, it is people who seem to truly believe that anything is pos- personalized. sible. During my four years there, I became one of those people, learned how to fail and pick myself up (multiple CA: What are the current trends affecting the market? times), and learned how to work much harder. I also felt how intoxicating it can be to reach a goal that sometimes MP: One of the bigger ones that I’ve seen is that our cli- felt unachievable (graduating!), after working at a level ents seem to be developing new technologies quicker that I didn’t think was possible previously. and using less money. This is made possible by a variety of factors, including the increase in the number of ser- Practice Areas Practice vice providers to whom development can be outsourced, “It’s a great career if you like working shared workspaces and incubators, AI that can be used with creative people in new and in development, shared resources like open source code exciting fields.” and publicly available data sets, and increased willingness of larger companies with money to engage in development relationships with smaller companies in a way JL: Making the move from a large, established New York that is actually mutually beneficial to both parties. Ensur- white-shoe law firm that was focused on public compa- ing consistency among the many contracts required for nies and large private equity investors or institutional cli- development because of all of the different players in- ents to Gunderson, where the focus is on small compa-

143 Emerging companies – Gunderson www.chambers-associate.com

nies started by one or two or three entrepreneurs was a Additionally, our clients are not always sophisticated big moment for me. It really allowed me to really focus on consumers of legal services or experienced in working what I really wanted to do and the clients I really wanted with lawyers, so we often have to do a lot of education to work for. about how to work with lawyers and how the legal system works. CA: What advice do you have for students considering a career in emerging companies? LS: There are many ways to get involved with the venture capital and emerging technology ecosystems, if that is JM: It’s a great career if you like working with creative where your passion lies. But there is something to be said people in new and exciting fi elds. It can be a challenging for working at the preeminent fi rm in the fi eld of your practice area because there are often not clear answers interest. It gives you access to the foremost experts and since our clients are on the cutting edge of their fi elds. the most interesting clients.

Authors

Marna Pattaropong Laure Stoffel Julie Mahoney Jeff Liu Partner Associate Associate Associate Practice Areas

144 Energy and projects www.chambers-associate.com

Energy and projects

In a nutshell ment of upstream resources and the financing of vari- Energy and projects are two distinct but overlapping ous energy investments. areas of law. When combined, they focus on the devel- • Certain states, such as Texas, have a very particular opment, construction and financing of major natural regulatory structure, so lawyers are often called upon resource (oil/gas, mining), power and infrastructure pro- to provide clients that are new to the state with regu- jects. The construction of pipelines, refineries, mines, latory advice on purchases and sales, contracts be- power plants and petrochemical plants is a massive tween companies and users, public authority require- business, with high stakes and massive dollar values. ments and licensing. Emerging economies are frequently the most hungry for • Many firms’ energy work focuses either on infrastruc- infrastructural improvements, meaning a lawyer’s work ture and construction projects or on representations increasingly takes on an international flavor. in front of the Federal Energy Regulatory Commission (FERC). FERC is a US government regulatory agency In addition, the projects component of an energy practice which regulates electricity sales, electric rates, hy- consists of both transactional and regulatory work (with dropower projects, natural gas pricing and oil pipeline regulatory work more prevalent in US domestic projects). rates. Its decisions can be reviewed by federal courts. There is a clear demarcation between transactional and • “I like that it involves public policy. I find that very inter- regulatory work, and lawyers usually specialize in one of esting. I like that what I do will have an effect on a wide the two. variety of people and also that there is a lot of variety in what I do from one day to the next. I can do individ- Non-energy projects are all about infrastructure. Typical ual client counseling, I can contest cases and I can be examples might be road, airports, rail, shipping, telecom involved in rule-making where policy issues are heavily and, most glamorously, sewerage and water systems. debated all in one day. I find it interesting to have vari- The work would also include the construction of major ety,” says Catherine Webking, partner at Scott Doug- multi-investor public buildings such as jails and stadi- las & McConnico. ums.

“Project finance transactions are “It’s always in flux. But never in my long complicated exercises in risk allocation practice has it been in such rapid flux that take a lot of time and generate lots as it is currently. So it’s never boring, of paper.” – Keith Martin, Norton Rose never static.” – Thomas Eastment, Fulbright Baker Botts Projects What lawyers do • Projects lawyers have three or four types of clients: Energy – transactional & regulatory sponsors/developers who put together the project; • Transactional work can cover anything across M&A, financiers (banks, international development agen- joint ventures, capital markets, private equity, venture cies, foreign export credit agencies); the provider or capital and project development and finance work. contractor (who supplies raw materials or undertakes • Energy lawyers deal with three types of clients: up- construction); and sometimes the ‘offtaker’ who pur- stream, midstream and downstream. Upstream busi- chases the products produced by the project. The nesses deal with getting energy out of the ground – oil, most significant roles for lawyers are representing ei- Practice Areas Practice gas, coal, sometimes geothermal. This includes min- ther the sponsors/developers or the financiers. ing and minerals companies. Midstream clients are in • Keith Martin, partner and co-head of the projects the refining, treating and transportation of resources group at Norton Rose Fulbright, says: “Project finance industry and its offshoots. Downstream clients are transactions are complicated exercises in risk allocation energy distributors: gas stations, electricity providers, that take a lot of time and generate lots of paper. The gas companies. complexity is increased by the involvement of different • Lawyers advise clients on negotiating and drafting countries and the number of people in different roles – agreements related to things like energy projects, the sponsors, senior and subordinated lenders, tax and true sale of power companies, investment in and develop- equity investors, landowners, offtakers. These are inter-

145 www.chambers-associate.com Energy and projects

Rankings in Chambers USA America. The Energy Policy Act of 2005 created a host of new regulations by which companies in the industry are required to abide. These include loan guarantees Top Ranked for technologies that avoid greenhouse gases, subsi- Allen & Overy Baker Botts dies for alternative energy producers and incentives to Bracewell drill for oil in the Gulf of Mexico. Clifford Chance Jenner & Block King & Spalding Realities of the job Kirkland & Ellis • This area of law is not widely publicized on legal cours- Latham & Watkins es. However, it can be a highly rewarding area of law to Mayer Brown work in, as Catherine Webking explains: “It is certainly Milbank not an intuitive area to go into from law school. But what Morgan, Lewis & Bockius is interesting is that the utility business is ultimately af- Orrick, Herrington & Sutcliffe Shearman & Sterling fecting everyone in the States so it is an area that re- Skadden, Arps, Slate, Meagher & Flom & Affiliates ally has a broad impact but is not well known from law Sullivan & Cromwell school.” Thompson & Knight • Texas is “the land of opportunity” for energy lawyers Troutman Sanders focused on US-based projects. Its law schools – most Vinson & Elkins notably the University of Texas – are some of the only White & Case ones in the country to provide energy classes. In Texas Winston & Strawn the energy industry is regulated by the Railroad Com- mission of Texas. Alaska is the country’s second oil Highly Recommended state. With the recent explosion of natural gas (and Akin Gump Strauss Hauer & Feld Alston & Bird oil) shale development, many other states have seen Ashurst increases in energy activity. Cleary Gottlieb Steen & Hamilton • Work is often international or related to projects Covington & Burling overseas, as there is hyperactive development of in- Crowell & Moring frastructure and the energy sector in many econo- Debevoise & Plimpton mies. “Just look at where development is roaring to find Dorsey & Whitney out where we work: China, India, Brazil, Mexico, Indone- Foley & Lardner sia, Peru, the Gulf states. There are giant infrastructure Gibson, Dunn & Crutcher developments there and things are moving exponentially Greenberg Traurig, PA faster in those countries.” Haynes and Boone Jackson Walker • The international nature of work means lawyers often K&L Gates have to deal with “shaky jurisdictions. Structuring a deal Munger, Tolles & Olson to take into account political risk is very much a part of O’Melveny & Myers being an international projects lawyer.” And that’s not Paul, Weiss, Rifkind, Wharton & Garrison just when working outside the US – “there could be Pillsbury Winthrop Shaw Pittman similar issues surrounding a mining deal in California.” Reed Smith Working hours can vary greatly across the spectrum.

Practice Areas • Sheppard, Mullin, Richter & Hampton While regulatory lawyers often work long hours, their Sidley Austin schedule is often more predictable and manageable Simpson Thacher & Bartlett than that of transactional lawyers. Venable Willkie Farr & Gallagher • In regulatory and advisory work, new recruits are often Wilson Sonsini Goodrich & Rosati placed on contentious cases, as the hands-on approach is considered by many firms to be the best introduction For more detail on ranking tiers and locations, visit to gaining expertise within the practice area. www.chambers.com • Energy transactional schedules are far less stable and this area of work may not be ideal for those with responsibilities or hobbies outside the work environ- esting puzzles to put together – they take an ability to lis- ment. Litigation work, on the other hand, is more pre- ten carefully, spot common ground and solve problems.” dictable even when working long hours. • The overwhelming majority of international work for • Transactions can typically last anywhere between six projects lawyers is handled in New York – which re- months and three years. In a typical transaction, the mains the ‘money center’ for transactions in Latin partner’s role is to manage the workflow and relation-

146 Energy and projects www.chambers-associate.com

ship with clients while other team members do the challenge is that you don’t have the opportunity to re- necessary groundwork and work in parallel to ensure peat transactions and hone your expertise early on, as the various elements of a deal fall into place. you might in other areas. It takes longer to become an • An excellent sense of organization is a must across all expert.” areas of energy and projects. It is also important to be • Thomas Eastment tells us: “With so much evolution comfortable with general administration law, and have in the market and government, flexibility is required to good litigation and transactional skills. Eventually, an solve problems. You can’t just look at the last deal or attorney can specialize in the types of cases they find memo for answers to new questions that a client poses. the most rewarding. Energy law isn’t for someone who wants to feel like, ‘I’ve • Thomas Eastment, senior counsel at Baker Botts, tells got all this mastered, now I can use my cookie cutter.’” us: “A nice broad understanding of the key areas of law is crucial. This would include classic energy law but also environmental, finance and general commercial law. The “The work tends to be extremely varied issues we grapple with span all these, so you need to be for many years, even for partners, and nimble. The answer is not simply taking an energy course.” that keeps the learning curve very • Another important skill is being able to handle num- steep for a good part of your career. bers and technical issues. Catherine Webking says: “I have an engineering undergraduate degree, which was The challenge is that you don’t have very useful. There is a lot of number crunching to be the opportunity to repeat transactions done and our clients are engineers or accountants, so and hone your expertise early on, as being comfortable with numbers is important.” you might in other areas. It takes longer • Webking also tells us that the variety of work on offer to become an expert.” — Jonathan can be simultaneously stimulating and challenging. There is little repetition and the day will not be monot- Green, Milbank onous, but gaining an in-depth knowledge in a specific area will take longer: “It is an ever-changing landscape Current issues in terms of corporate structures, there is a lot of activ- June 2020 ity related to companies acquiring other companies or • The Senate appointed Republican James Danly as one merging with other companies so the clients themselves of the five commissioners of the Federal Energy Regu- change quite often.” latory Commission (FERC) in March 2020. This ap- • As it is a relatively small practice area, an attorney in pointment hit the headlines as the commission is now this area will often be cooperating with the same small made up of three Republicans and one Democrat, with groups of people. Consequently, your opponent on one one position outstanding awaiting to be appointed. deal may become your ally on the next, and so it is im- Causing further commentary is Trump’s decision to not portant to maintain a professional attitude at all times. nominate a Democrat for the position – historically one • Particularly on the transactional side, it is important Democrat and one Republican are nominated for the to be able to gauge what level of detail is sufficient. position. Media coverage has highlighted the potential As Todd Alexander, partner at Norton Rose Fulbright, impact of this on the national and international energy explains: “Unlike being in school where there is no cost market long after Trump’s presidency ends. to seeking perfection and you can research for as long • The FERC can penalize energy companies for things as you like to write the best article you can, in a firm time like illegal trading on the wholesale electricity mar- is money. You may stop at 90% of the way there, think- ket. The company can choose whether they want a ing this is efficient, because the extra time doubles the FERC Administrative Law Judge to hear the dispute, or price of the services provided. For half the price you get whether they want to take the case to a federal dis- 90% certainty, and sometime juniors struggle with that trict court. The latter option often results in a separate because they are used to being measured by having got- court case about the statute of limitations. In Febru- ten the right answer. Perfection is not always what you’re ary 2020, the Court of Appeal for the Fourth Circuit Practice Areas Practice looking for.” resolved a long-running issue: when does the statute • Jonathan Green, partner and co-chair of the project, of limitations period for enforcement claims actually energy and infrastructure finance group at Milbank, begin? Generally, FERC must issue an enforcement says: “Projects lawyers get the opportunity to do many proceeding within five years of the alleged miscon- different transactions without a whole lot of repetition. duct. However, the Court of Appeal for the Fourth For young lawyers I think that presents benefits and Circuit decided that FERC actually has a further five challenges. The work tends to be extremely varied for years (totaling ten years) to bring a case if the fines many years, even for partners, and that keeps the learn- haven’t been paid within 60 days. ing curve very steep for a good part of your career. The

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• This decision came about during a dispute between • Internationally, Brazil, East Africa, Australia and the FERC and Dr. Houlian Chen and the financial entities North Sea are attracting increasing attention. Chinese he is associated with, including Pennsylvania-based and Indian companies especially are investing heavily hedge fund Powhatan Energy Fund, for alleged main infrastructure and exploration in these new areas, nipulation of the electricity market in 2010. Chen and as well as existing markets. South Africa looks ripe to the associate entities claimed the statute of limitations become a key player in shale gas exploration. had passed, because FERC did not issue its notice until • The Belt and Road Initiative, first unveiled by China 2015. However, because they did not pay the fine within 2013 (with an estimated completion date of 2049), in 60 days, the statute of limitations had not passed. is set to be one of the largest infrastructure projects This meant that Chen and the associated entities now in history – the aim being to create a modern-day Silk have a hefty $29 million fine to pay. Road connecting Asia with rest of the world. Estimates • Todd Alexander explains that battery storage is a sig- indicate that projects in Asia alone will require invest- nificant subject: “The problem with renewable energy is ments of multiple trillions of dollars. However, the pro- that it is intermittent in nature and not dispatchable. You ject has been impacted by the COVID-19 outbreak due can’t ask for it on demand. There have been continuous to travel restrictions on workers and new regulations improvements in battery storage which would allow all impacting imports in some countries. renewable energy to be generated when available and • In 2018, former California governor Jerry Brown set dispatched as needed.” The current largest lithium ion the green ball rolling by instating a law that commits battery storage facility is in Australia, at the Hornsdale the state to being clean energy only (sourced from re- Power Reserve where Elon Musk’s Tesla activated a newables or emission-free) by 2045. The state is home 100-megawatt battery in 2017. Musk famously bet that to many cities infamous for their traffic jams, so the the facility would be built within 100 days of the con- policy aims to improve urbanites’ health. Virginia, New tract being signed, and that the battery would be free Mexico, Hawaii and Washington have since committed if not. It was built in 63 days. The facility is operated by to the same goal. Vermont, Idaho, Maryland, Maine and French renewable energy producer, Neoen. In Novem- Oregon have also committed to draw energy from so- ber 2019, Neoen revealed it will increase the Horns- lar, wind or hydro sources in the coming decades. dale site’s storage and output by 50%. The South • The Energy Policy Act 2005 changed the start and end Australian government will give a total cash injection dates for daylight saving time in 2007, to slightly in- of AUD58 million (USD33.4 million in March 2020) to crease the amount of daylight saving time. In March the expansion. 2018, Florida’s Congress voted to use daylight saving • If you think that’s impressive, Musk has even bigger time all year. Two years later, it still hasn’t come into ef- plans in the pipeline. In February 2020, Tesla and Cali- fect because US Federal Law has to be amended first. fornia’s utility, PG&E, were given the go-ahead to cre- Oregon, California and Washington also have pending ate the biggest battery power plant in the world, on the bills to end DST. As a result, three Senators introduced Moss Landing site in California. The 1.2 GWh project will ‘The Sunshine Protection Act’ in 2019, which aims to be a whopping ten times the capacity of Hornsdale. permanently use DST across the US. Congress have • The Keystone XL pipeline is a contentious project, yet to set a date to debate the bill. which would pump 830,000 barrels of oil products • The pandemic lockdown saw global oil prices hit re- from Canada across 1,200 miles of US land and indig- cord lows as demand dropped off. But economists ex- enous territories every day. There have been innumer- pect a swift bounce back once the pandemic is under able challenges to the construction of the pipeline control. So far we haven’t seen a dramatic change in Practice Areas since 2010 – including Barack Obama banning the headcount in projects and energy, probably because project during his presidency – but in 2019, the Court these transactions span several years in many cases. of Appeal of the Ninth Circuit gave the project the all- clear. Environmental and indigenous groups are still fighting the project, but it was reported in the press “An incredible sea-change has arisen in March 2020 that infrastructure company TC Energy in the USA from shale oil and gas has already begun its preparatory work on completing development. It has transformed the Keystone XL. debates about so many issues. There • Babcock Ranch in Florida is the US’s first – and only – solar-powered town. The community was built in 2018 are serious environmental questions and generates 1.5 megawatts from 700,000 solar pan- posed over the fracking techniques els. The 18,000-acre town boasts commercial build- used to develop oil and gas. There’s ings, pools, homes, a restaurant, a coffee shop, a juice also a concern that by exporting these bar and a charter school; there are also plans to open a commodities domestic prices will go shopping center in 2021. up.” – Thomas Eastment, Baker Botts

148 Environment www.chambers-associate.com

Environment

In a nutshell one reads about in the papers every day,” says Hun- Environment attorneys advise companies on federal, ton’s Brownell. state and local laws and regulations relating to public • He adds: “When a statute or law is changed it initiates a health, welfare and the environment. The type of conduct process that can last for years, from lobbying legislators, that is regulated includes industrial activity, the develop- to working with agencies that develop rules, to challeng- ment of natural resources, the use of land and everyday ing or defending those rules in court, to seeking permits activities like driving a car. BigLaw attorneys primarily and licenses under those rules, to defending clients in defend companies that are subject to these laws and enforcement proceedings.” regulations.

The laws attorneys work with will depend on the envi- Realities of the job ronmental medium: for example, air, water, waste and • The laws and regulations have become increasingly natural/cultural/historical resources (this touches on his- complicated over the years. Thus, much of what en- torical preservation, land use and endangered species) vironmental lawyers do on a daily basis is to “make all have their own statutes and programs. The Clean Air sure that clients understand all the rules to which they Act – “one of the most complex pieces of legislation on the are subject and work with them to ensure they are books,” according to Hunton Andrews Kurth partner Bill complying with those rules,” says Hunton Andrews Brownell – is one example. Kurth partner Andrea Field. • “Often, the first time a client realizes that there’s a The types of proceedings handled by environmental law- problem is when the EPA starts an enforcement action, yers are also varied. Administrative agency work involves charging the client with breaking federal law.” Because dealing with agencies. In federal government, that in- the laws are often unclear, “it is the attorney’s job to cludes the Environmental Protection Agency (EPA), the determine if legitimate arguments can be made that, in Department of the Interior (DOI), the Department of Ag- fact, the client has not violated the law. And if there are riculture (DOA), the Department of Energy (DOE) and the violations, then it is the lawyer’s job to negotiate a rea- Nuclear Regulatory Commission (NRC). Legislative work sonable – and, if possible, nonpunitive – way for the client involves working with Congress and advising companies to come into compliance.” on federal legislation and lobbying. • This field of law is “constantly changing,” according to Field. “International tribunals, Congress and state legislatures enact complicated laws. That prompts regula- “An environmental lawyer will practice tors to adopt complicated rules and issue guidance to before Congress, administrative implement the laws.” And then there are the advocacy agencies, federal and state courts, groups, which can “file lawsuits and do other things to and international tribunals and try to push regulators into taking (or not taking) additional actions.” Staying abreast of all such changes “neces- organizations. The practice of sarily keeps practitioners on their toes.” environmental law also involves politically controversial subjects that one reads about in the papers “Day to day we might be involved in every day.” – Hunton Andrews rulemaking, consulting with clients Kurth partner Bill Brownell or defending an enforcement action,

but in each of those contexts we are Areas Practice What lawyers do essentially engaging in the larger • “I tell students that the practice of environmental law debate about how to use the world’s touches on everything a lawyer can do. An environmen- resources in a responsible way.” – tal lawyer will practice before Congress, administrative Robert Wyman, Latham & Watkins agencies, federal and state courts, and international tribunals and organizations. The practice of environmental law also involves politically controversial subjects that • According to Patrick Dennis, co-chair of Gibson, Dunn & Crutcher’s environmental litigation and mass

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Rankings in Chambers USA tort practice group, young environmental lawyers will find that “many of the issues are recent and have not been the subject of litigation.” Top Ranked He also remarks: “It’s a practice area that is very much Arnold & Porter • Baker Botts subject to politics, legislation and developments in sci- Bracewell ence. For example, now with mapping of the human ge- Cravath, Swaine & Moore nome, you can determine if in a birth defects case the Davis Polk & Wardwell causes are hereditary or might be external.” Foley Hoag • So, are science qualifications important in the environ- Gibbons P.C. mental field? Dennis does not think so: “Some of the Greenberg Traurig, PA best lawyers I’ve worked with have no scientific back- K&L Gates ground at all.” He adds: “Lawyers, particularly in this King & Spalding field, need to be really good advocates and good writers. Kirkland & Ellis They have got to be flexible and do not have to under- Latham & Watkins Mintz Levin Cohn Ferris Glovsky and Popeo PC stand every nuance of science.” Morgan, Lewis & Bockius • “Day to day we might be involved in rulemaking, consult- Perkins Coie ing with clients or defending an enforcement action, but Sidley Austin in each of those contexts we are essentially engaging in Troutman Sanders the larger debate about how to use the world’s resources Vinson & Elkins in a responsible way,” says Robert Wyman, partner and Weil, Gotshal & Manges environment don at Latham & Watkins. • Wyman adds: “Almost everything one does touches on Highly Recommended an important area of public policy. Most environmental Allen & Overy law practitioners find the job personally rewarding be- Alston & Bird Brown Rudnick cause they have strong views about how environmental Cahill Gordon & Reindel risk should be addressed. The practice of law can be- Crowell & Moring come routine, but if you’re passionate then it never gets Debevoise & Plimpton old.” Dorsey & Whitney • Some lawyers reckon that large commercial practic- Duane Morris es are downsizing their environmental departments. Foley & Lardner However, former Sive, Paget & Riesel principal Kathy Fox Rothschild Robb comments: “I wouldn’t say that big firm practices Gibson, Dunn & Crutcher are de-emphasizing their environmental practices; rath- Goulston & Storrs er they aren’t growing as much as they were 15 years Greenberg Glusker Fields Claman & Machtinger Haynes and Boone ago.” She suggests that this is because clients favor Holland & Knight specialist environmental firms with highly experi- Jackson Walker enced practitioners who can deal with “sophisticated Jenner & Block environmental issues.” Market sources also explain that Mayer Brown environmental work tends to attract lower fees than Morrison & Foerster other commercial practice areas, making it less palat- Nelson Mullins Riley & Scarborough able for big, corporate firms. Practice Areas O’Melveny & Myers • What advice does Kathy Robb have for upcoming law- Paul Hastings yers? “Do as much reading as possible and study the Pillsbury Winthrop Shaw Pittman background on the policy that is driving some of the Proskauer Rose Seyfarth Shaw changes. You can deal better with the nuts and bolts of Shearman & Sterling the day-to-day work if you understand what the theory is Simpson Thacher & Bartlett behind the regulatory program.” Skadden, Arps, Slate, Meagher & Flom & Affiliates • Environmental law often comes up within the remit of Sullivan & Cromwell pro bono work as well: a Gibbons attorney noted work- Thompson & Knight ing on “a pro bono environmental trial where we repre- Venable sent a property owner who had some work done on their White & Case property: the contractor dug into an underground oil tank Wiley Rein which spilled into the property. I got to attend the trial in Winston & Strawn court – it was good to represent people who really need For more detail on ranking tiers and locations, visit the help but also get great environmental experience.” www.chambers.com

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Current Issues the withdrawal was as follows: “My job is to represent June 2020 the people of Pittsburgh, not the people of Paris.” The • The scientific consensus has pushed governments to withdrawal process will take a year to complete. act upon global warming through international trea- • The UN Climate Change Conference in 2018 held ties and policies – mainly by reducing their use of ener- in Katowice, Poland was the 24th conference of the gy sources which produce greenhouse gases. Accord- parties in the UN Framework Convention on Climate ing to the World Meteorological Organization (WMO), Change. The conference agreed on rules to implement the amount of CO2 produced between 2015-2019 in- the Paris Agreement and put forward a ‘rulebook’ on creased by 20% compared to the previous five years. how governments will measure and record their ef- The NOAA and NASA report that the last five years forts toward the agreement. The agreement will come have reached the highest temperatures in history. into force in 2020. • Human-caused climate change is having rapid ramifi- • In September 2019, the UN Climate Action Summit cations on the biosphere – the recent Australian wild- was held in New York – the aim of the summit was to fires that started in 2019 have been some of the most further climate action. Sixty countries were expected devastating in history; research shows that the record to announce their plans for reducing greenhouse temperatures and dryness in 2019 made burning 30% emissions. Greta Thunberg, the 16-year-old environ- more likely. The wildfires caused damages such as: an mental activist, addressed the summit, speaking on estimated 15.6 million acres burned; 24 people killed; behalf of the younger generation who now have to live 1,400 homes destroyed; and approximately 1 billion with the consequences of the current environmental animals dead. damage: “You have stolen my dreams and my childhood • Government officials are now trying to halt the cli- with your empty words.” mate crisis through new agreements and policies – the • Local government leaders are still fighting against cli- 2015 Paris Agreement collected signatories from 195 mate change. In January 2020, the US Conference of countries to keep a global temperature rise to 1.5C. Mayors was held in Washington. A survey of 182 cit- The agreement took fruition in November 2016 after ies found that 60% of the cities have started or pro- approximately 55 countries – accounting for 55% of gressed a climate change initiative or policy in the past greenhouse gas emissions – approved the conditions. 12 months. Mayors from across the US joined together • Since his inauguration, Donald Trump has tried to at the conference to discuss the urgency of the find- close the EPA and reverse many environmental poli- ings. cies – a key one being the USA’s withdrawal from the • So far we’ve seen a certain resilience in this practice Paris Agreement on Climate Change Mitigation in June group to the pandemic-derived recession, because the 2017. Moreover, Trump has increased fossil fuel usage area is predominantly regulatory rather than transac- to not impede American business. tional, so less finance-dependent, and more likely to • November 2019 saw Trump officially announce the involve the state: the most heavily affected areas are withdrawal from the Paris Agreement at the natural B2B. gas conference in Pittsburgh. Trump’s explanation for Practice Areas Practice

151 www.chambers-associate.com Environment – Allen & Overy

Environment – Allen & Overy

We are more aware of our impact on the environment than ever before, and lawyers play a key role in determining how their clients treat it. A&O’s lawyers reveal the ins and outs of this practice and what becoming a lawyer here entails...

Chambers Associate: Can you give a brief description CA: What do associates do? of what the environment group at Allen & Overy does? NO: Associates are responsible for a very wide array of Ken Rivlin, partner: Our Global Environmental Law tasks, from researching and drafting compliance advice Group includes more than 60 specialist lawyers in Eu- to clients to facilitating environmental risk management rope, Asia-Pacific and the Americas. Our partners and through due diligence and contract drafting/negotiation. lawyers across the jurisdictions work together on a daily Associates are given significant responsibilities early. basis, providing integrated, cross-jurisdictional advice on a broad range of issues, including: due diligence and FC: Associates draft environmental language for con- risk allocation in cross-border transactions; advice on tracts; research environmental rules and requirements; product responsibility requirements (such as EU REACH, draft advice memos; review environmental investigation EU WEEE and RoHS and “copycat” rules in China, South reports, permits and compliance materials; draft environ- America, the US and elsewhere; managing product com- mental due diligence reports; and represent our clients pliance issues; ensuring appropriate transfer of carbon in negotiations with counterparties. The day-to-day work credits; managing contaminated land cleanup issues; is almost always varied, with an associate typically work- advising on domestic and international environmental ing on several different matters every day. Our practice marine liability and shipping issues; addressing oil & gas touches all kinds of industry sectors, from products man- and minerals mining, extraction and distribution issues, ufacturing to real estate to energy projects to shipping. and many other matters. KR: Associates are involved in every aspect of our work, Felise Cooper, senior counsel: We advise clients on en- including, among other things, drafting and negotiating vironmental risk and negotiate environmental issues in agreements, assessing environmental risk and evaluat- all kinds of transactions and on a standalone basis. We ing complex sources of exposure (including but not lim- are known for our multijurisdictional practice and often ited to contaminated land, impacts of climate change, undertake large-scale projects that require compara- product sustainability, water use and safety, human tive analysis of environmental laws across many geog- rights and worker safety) and explaining potential out- raphies. comes and alternatives to clients and colleagues. From day one, our associates speak directly to clients and Nick Ognibene, associate: The environmental group fo- learn to handle complex issues and situations. They see Practice Areas cuses on a mix of compliance advice and transactional virtually every industry sector in every part of the world. support. We assist clients in compliance with American In one day, they may work on a desalination plant in Chile, and international environmental regulations, and help a wind farm in Canada, a mining operation in Africa, and a our clients manage environmental liabilities arising global industrial and aircraft turbine manufacturer. They from a wide variety of transactions, as well as those that also frequently work on exciting pro bono matters: recent emerge ‘off-deal.’ matters have included several asylum cases, a survey of international laws governing waste contamination for the United Nations, and compliance and governance advice “We are known for our for a major US NGO. Most matters involve working with multijurisdictional practice and often lawyers (environmental and otherwise) in other parts of undertake large-scale projects that the firm throughout the world. The pace is quick and the require comparative analysis of work is challenging, but it’s also a lot of fun. environmental laws across many geographies.”

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“Our practice touches all kinds of CA: What factors are currently driving environmental industry sectors, from products work? manufacturing to real estate to energy projects to shipping.” KR: Our corporate and financial institution clients are increasingly focused on environmental compliance and sustainability. When I first began doing environmental CA: What are the highs of the practice? policy work in the late 1980s (just before law school), the field was still reasonably new. The pace of Superfund FC: Juggling many matters and subjects can be a boon, (contaminated land) litigation, including related insur- because it keeps the work interesting and allows for op- ance coverage claims, was really picking up, asbestos portunities to work with many different colleagues and and other ‘toxic tort’ litigation was on the rise, and the practice groups in the firm. Another high is the opportu- USEPA and other state actors, to varying degrees, were nity to work with an outstanding and congenial group of making enforcement a priority. As fines and trial awards colleagues across the world. piled up, banks and companies began taking notice.

KR: The best highs involve helping a client solve a difficult problem, get a deal over the line, or position itself “...a global drive for increased strategically for a new opportunity. It can be incredibly corporate transparency on issues like exciting and rewarding to complete a long, high-stakes environmental policy, supply chains, negotiation with a signed agreement that meets the cli- human rights and business ‘footprints.’” ent’s needs. The best and most rewarding part is when that client calls again for his or her next big matter – long- term relationships of trust with both clients and col- Fast forward to today, banks and corporations have a leagues are what really make this job special. much more sophisticated understanding of environmental risk. They also better understand how environmen- Another great high is the international aspect of our tal and sustainability issues can impact not only share work. We work with clients and colleagues across the values and access to capital but also their brands and world on a daily basis. At our last off-site (May 2018), reputations. Added into this mix, environmental legal re- which we held in Lisbon, our 60+ lawyer group (with gimes have evolved substantially outside the US, leading lawyers from the US, Europe and Asia) spent two days to more regulation and enforcement globally. The impact together discussing global legal trends and refining our of these trends has been multiplied by the accelerated group’s global strategy. We also sampled some great globalization that has characterized the world’s economy Portuguese wine! over the past 30 years. Some companies get it right. And in my experience, most do try. Those that don’t usually do NO: The highs are consistently engaging in substantive (and should) pay the price. and interesting work, and being able to engage in high- level firm-based legal work while having a positive en- So what does this mean for our work? We are expecting vironmental impact (we do not engage in environmental to see increasing amounts of work advising on alterna- litigation/defense). tive energy, supply chain compliance and sustainability, and environmental and safety compliance, particularly CA: And the lows? in manufacturing, oil & gas and mining. Climate change mitigation is also increasingly a focus, as is improved NO: When multiple deals and/or client needs come in at compliance training and systems to better manage risk. the same time – the practice does involve its fair share of There is increasingly broad recognition (notwithstanding busy times and it can sometimes be stressful to manage some positions taken by the now not-so-new US admin- everything. istration) that sustainability must be a priority, and this is driving new work for us in countless ways. Clearly, Practice Areas Practice FC: Some people don’t enjoy detailed analysis and would protecting and preserving the environment is one of the prefer to focus on the big picture only; in this practice, greatest challenges the world faces – this is an incredibly you need to focus on both. exciting time to be doing what we are doing.

KR: I can’t think of too many lows. We can get quite busy, FC: Some factors include a global drive for increased and at the end of the day it is a job. But unless I could play corporate transparency on issues like environmental shortstop for the New York Mets I can’t think of too many policy, supply chains, human rights and business ‘foot- other jobs I’d trade this for. prints’; continued globalization of business; changes in political agenda (e.g. Brexit, Trump administration); cli-

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mate change developments; environmental disasters; gation/defense. Most environmental practices at larger and changes in government enforcement practices. firms involve varying degrees of environmental litigation and defense, which inevitably results in defending firms facing suits or investigations arising from environmental “In today’s highly connected world, malfeasance on their part. So it can be difficult to engage clients are especially eager to avoid in environmental work at a firm while consistently con- reputational harm associated with tributing to sustainability and not undermining it. A&O’s environmental issues.” environmental practice provides just such a (rare) opportunity.

NO: Firms are always concerned about potential envi- CA: What advice do you have for students interested ronmental liabilities associated with mergers and acqui- in this area? sitions, as well as financings. Many sectors that involve significant environmental, health & safety (EHS) risks KR: Learn as much as you can. Balance expertise with are very active. Plus, in today’s highly connected world, versatility, so that you can adapt. The world, including the clients are especially eager to avoid reputational harm legal world, is in a state of constant, accelerating change. associated with environmental issues. Embrace that.

CA: How can students and associates keep up to date Also, look for mentors or examples. Find people who are with these trends? five, ten, 15 years ahead of you on their career paths, and find a way to get to know them. Each person may have a KR: Read. Read. Read. Everything. We have access to so quality or an experience that you can emulate and learn much more information now than ever before. There is no from (or avoid!). Think about what you want to do, see excuse to be uninformed. I try not to limit myself to any what others have done to be successful, and try to learn one source. I read a rotating collection of daily papers (NY from that. Times, Wall Street Journal, FT, Washington Post), receive updates from the EPA and EU Commission websites and And, importantly, try to have as much fun as you can various NGOs, and scan a few daily and weekly blogs. I along the way. switch between CNN and Fox just to be sure I am being exposed to various viewpoints. And of course I get my NO: I do wish that I had taken more environmental law dose of Colbert and SNL Weekend Update when I can. classes in law school, and would probably recommend the same for students interested in this field. That said, CA: What opportunities in environmental work are quality of professors and so forth is equally or more im- unique to Allen & Overy? portant. And stay true to your beliefs.

KR: The most unique aspect of Allen & Overy is our FC: Being a specialist increases your control over your global reach. Our global environmental group has over schedule and your career. You can call the shots if you 60 lawyers from 14 countries working together across a are not interchangeable with someone else. If you are un- broad range of issues. Working at A&O, we need to be sure, you can get some broader experience before tran- experts in comparative law, with a broad understanding sitioning to this area; it is easier to go from generalist to of how key issues, such as owner or operator liability for specialist than the other way around. Practice Areas contaminated land, veil piercing and successor liability are handled in different jurisdictions. We’ve had exciting CA: Where can new junior associates expect to be in engagements advising on the salability/viability of emis- five years? sion reduction credits under various trading systems. We frequently advise companies on how best to imple- FC: A mid-level or senior associate at A&O (in the US or ment global compliance policies that ensure compliance abroad) or another firm; an in-house environmental or wherever they are located. And we recently did a global transactional lawyer at a bank or corporation; occupy- survey of community involvement in environmental poli- ing a government position; or working as an independent cymaking for a Chinese government-sponsored project consultant. that looked at making Chinese environmental policy more open. NO: Being singularly responsible for managing EHS components of major transactions and handling client NO: Probably the most unique and best thing about the environmental compliance queries. There is a lot of early environmental practice at A&O is that it involves compli- responsibility and significant opportunities to develop ance and transactional work but not environmental liti- and take ownership.

154 www.chambers-associate.com Environment – Allen & Overy

Authors

Ken Rivlin Felise Cooper Nick Ognibene Partner Senior counsel Associate Practice Areas Practice

155 www.chambers-associate.com First Amendment, libel and defamation

First Amendment, libel and defamation

When is calling someone out protected by law? What constitutes a public figure? Am I allowed to call my neighbor a thieving ignoramus on the community Facebook page? These are the sorts of questions you’ll find at the intersection of First Amendment and defamation law.

A Balancing Act tingly as SLAPP suits (strategic lawsuit against public FREEDOM of speech, religion and a free press are fun- participation), the threat is an effective censor. damental to any functional democracy. Without them, the state is more or less able to operate with impunity, without fear of dissenting voices, and with the ability to A Bit of History ruthlessly crush, incarcerate or kill those who speak up. To understand how we got here, we need to look over- The First Amendment, along with its nine original sisters, seas to England. Up until the 1500s, people looked at of- was adopted by the US in 1791 precisely to protect these fenses through a ‘sticks and stones’ lens. In other words, rights. It is these freedoms that allow us to hold govern- one could not bring cases of alleged defamation before ment, presidents, and public figures to account today. It the King’s courts, which were kept busy with crimes such was these kinds of freedoms that stopped Sir Thomas as murder, assault, and robbery. Defamation, it was felt, More from being burnt at the stake for refusing to recant was more of a spiritual concern and it fell to the Church his Catholicism in Tudor England (which we’ll visit again to resolve any disputes (penance was typically the puni- shortly). tive measure if the defendant was found guilty).

But there is danger at the other end of the scale. Left un- checked, freedom of speech and press have the power to Telling everyone at the local tavern that destroy lives, irrevocably damage reputations, and even your neighbor is an incompetent, pox- undermine national security by spreading lies, rumors ridden chicken thief is slander. Publish and inflammatory rhetoric. In Ken Follett’s novel Code it, and it becomes libel. to Zero set in the late 1950s, it’s pointed out that calling someone a communist, irrespective of the veracity of that claim, is enough to ensure that person is unem- This changed in 1507, when the King’s courts began to ployable. Defamation laws serve to protect people from handle defamation cases. A person could defame anoth- spurious and malicious statements, and the impact these er by accusing them of one of the following three offens- can have. It is for reasons such as this that defamation es: committing a crime, having a disease, or being incom- laws exist, and indeed predate the rights enshrined by petent. Fifty years later, defamation laws were finetuned, the First Amendment. with the courts demanding that the allegedly defamed party provide evidence of reputational damage, and also Practice Areas It follows that a tension exists between defamation laws prove that the wounding words were not uttered in jest and the First Amendment, both in the courtroom and in or in the heat of the moment. In 1660, the law drew an general debate. It takes a delicate balancing act to pro- important distinction between slander and libel. Slander tect us from both the policing of speech and fake news refers to spoken falsehoods or insults, while libel refers or reputational harm. The former First Amendment om- to them in print. Simply put, telling everyone at the local budsman for the Freedom Forum, Paul McMasters, put tavern that your neighbor is an incompetent, pox-ridden it like this: “On the one hand, libel suits are a necessary re- chicken thief is slander. Publish it, and it becomes libel. course for those who believe that they have been wronged by the press. On the other hand, even the threat of a libel So by the time cases were being heard on US soil, there suit can serve as a subtle censor of the press.” Basically, was already a long history of defamation law to inform write a scary letter to a publication threatening to sue local legal practice. And despite the history of innovation them into oblivion unless they retract that comment or that the States is known for, anyone thinking that the US take down that article, and all but the most financially in these early days was “a society where freedom of ex- secure media outlets are likely to back down. Known fit- pression was cherished,” is suffering from a “hallucination which ignores history.” That’s according to the late his-

156 First Amendment, libel and defamation www.chambers-associate.com

torian Leonard Levy, who continued that “the American pleasantly sharp attacks on government and public offi- people simply did not believe or understand that freedom cials.” The ruling signaled that if the press reported on a of thought and expression means equal freedom for the public figure whose actions were in the national interest, other person, especially the one with hated ideas.” then that reporting had to be at least partially protected by the First Amendment – even if it contained errors (“er- At the time, defamation laws massively favored the plain- roneous statement is inevitable in free debate”). Without tiff. First Amendment expert David L Hudson Jr. notes the that leeway for error, one can only imagine the headache trial of newspaper printer John Zenger in 1735, more than Twitter would cause First Amendment lawyers today. fifty years before the First Amendment was enshrined, asserting that “even truth was no defense to a libel prosecution.” Zenger’s publication, the New York Weekly The First Amendment and You Journal, had printed several damning articles about the While the Sullivan case undoubtedly provided far greater governor William Crosby. According to U.S. History, libel scope for press freedom, the battle rages on. In the 2020 at the time included “published information that was op- World Press Freedom Index (a ranking of countries com- posed to the government. Truth or falsity were irrelevant.” piled by Reporters Without Borders), the US doesn’t even The outcome was looking bleak for Zenger. But then, make the top 40. Most nations are used to coming after against everyone’s expectations, Zenger was acquitted the Scandinavian set on lists of excellence – Norway, Fin- “on the ground that his charges were based on fact – a key land, Sweden and Denmark form the top four here. But consideration in libel cases since that time,” according to being outperformed by countries with checkered histo- Encyclopaedia Britannica. ries of quasi-democracy (the likes of Suriname, Namibia, South Africa, Slovenia, Chile and Romania) suggests that First Amendment lawyers still have a lot to fight for here. The Case That Changed the Game Despite Zenger’s victory, it continued to be tough going For those looking to fight the good fight, the ability to be for the press. According to Hudson, “the Supreme Court able to draw fine-grained distinctions and present clear compared libel to obscenity and fighting words – catego- arguments is key. As an example, consider the 1974 case ries of expression that receive no First Amendment protec- Gertz v. Robert Welch, Inc. Elmer Gertz, a renowned civil tion.” This put the press in a difficult position: print and rights lawyer, was accused of being a communist in the potentially suffer a libel suit. This risk still exists today of magazine American Opinion, published by Robert Welch, course, but a landmark case in 1964 helped to establish co-founder of the anti-communist John Birch Society. a better equilibrium. The article had several inaccuracies, one even claiming that Gertz had framed a Chicago police officer for sec- In 1960, The New York Times printed an editorial advert ond-degree murder. claiming that several racially motivated civil rights violations had been committed by the Alabama police department in Montgomery. Hudson notes that the then With questions like ‘what constitutes city commissioner LB Sullivan sued the publication for a public figure?’ at the complicated defamation, despite the fact that “he was not mentioned intersection of First Amendment and by name in the article.” Sullivan did correctly point out defamation law, those with a penchant that the ad had some inaccuracies. “Under Alabama common law, falsity and injury to reputation were presumed,” for quiddity could thrive. according to The First Amendment Encyclopedia. Sullivan banked a $500,000 award from the jury. The Supreme Court in making its ruling considered the distinction between public figures and ‘limited purpose’ public figures, defining the latter as someone who “in- “Erroneous statement is inevitable in jects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range free debate.” Areas Practice of issues” – a modern day example might be someone like The US Supreme Court, however, ultimately disagreed Amanda Knox, who found herself at the center of one of with this verdict, ruling that the common law was “consti- the world’s most high-profile murder investigations when tutionally deficient for failure to provide the safeguards for her roommate was killed in Perugia, Italy. Elmer Gertz, freedom of speech and of the press.” These safeguards, the court ruled, was not a public figure – limited purpose the Court said, served to protect the “profound national or otherwise. In drawing the distinction, the Supreme commitment to the principle that debate on public issues Court ruled thatprivate individuals like Gertz do not need should be uninhibited, robust, and wide-open, and that it to prove malice to meet the conditions of defamation. may well include vehement, caustic, and sometimes un-

157 www.chambers-associate.com First Amendment, libel and defamation

With questions like ‘what constitutes a public figure?’ at the complicated intersection of First Amendment and defamation law, those with a penchant for quiddity could thrive. Floyd Abrams, First Amendment litigator and senior counsel at Cahill Gordon, recalls having to choose “whether to obtain a PhD in American History and then teach or to go to law school.” The indication is that keen, analytic minds are likely to thrive in this practice area. “Fortunately for me, I chose the latter path.” Practice Areas

158 Food & beverages, retail and franchising www.chambers-associate.com

Food & beverages, retail and franchising

In a nutshell Food and beverages, retail, and franchising law are three Franchising (transactional) overlapping practice areas which center on the trade • Receive instructions from a franchisor who would like of products and services. They encompass the sale of to establish a franchise agreement with a franchisee. goods and services to consumers, as well as business- • Draft a franchise disclosure document (FDD) and send to-business (B2B) matters. Attorneys who specialize in it to the franchisee to review. these fields must take a holistic approach to their work, • Negotiate any revisions to the disclosure document in as they deal with a wide range of issues; matters can consultation with the client. encompass real estate leases, franchise documenta- • Apply to have the FDD filed by a state agency if re- tion, M&A deals, antitrust compliance and IP regulations. quired under state law. There is a contentious side to these practices, where the • Draft the franchise contract and ensure that it is work is similarly varied: false advertising class actions, signed by both parties. GMO (genetically modified organism) labeling claims and data breach investigations are covered, alongside other issues. Practitioners act for an unsurprisingly Realities of the job broad list of clients, including multinational food dis- • Miriam Guggenheim, co-chair of Covington & Burl- tributors, international fashion houses, shopping centers ing’s food, drug and device practice group, says: “The and trade associations. The global flow of products and issues in the food and beverages industry are quite services, facilitated by the rise of e-commerce, means broad. There is nutrition and public health policy; engag- that lawyers typically have expertise in both interna- ing with Congress and the FDA; considering what con- tional and domestic regulations. The latter are issued sumer advocacy groups and NGOs think about a particu- by the likes of the Food and Drug Administration (FDA), lar issue; helping companies think through acquisitions the United States Department of Agriculture (USDA), the and about the value of the brand; giving labeling advice; Drug Enforcement Administration (DEA), the Department and preventing consumer fraud litigation.” of Justice (DOJ) and the Federal Trade Commission (FTC). • Martin Hahn, food and beverages partner at Hogan Lovells, suggests: “A typical day is unpredictable. There will be countless calls and people that will stop What lawyers do by your office. There will be enforcement actions and Food and beverages/retail (disputes) recalls where you need to drop everything and help a cli- • Receive instructions from a client who has been ac- ent make a decision and interact with regulatory agen- cused of false advertising. cies.” He jokes: “I never accomplish what I intend to do • File for a motion to dismiss. when I come into the office!” • If it’s a class action, conduct ‘class’ discovery. This in- • Food and beverages cases are often filed in Califor- volves working with experts to try to defeat class ac- nia with the US District Court for the Northern District tion certification. Attorneys will depose the experts of California, which is fondly referred to as the ‘Food before filing and defending their reports. Court.’ • If class certification is granted (or if the case was nev- • Lawyers in this field must maintain a thorough un- er a class action in the first place) attorneys carry out derstanding of various acts, especially the Nutrition ‘merits’ discovery. They obtain all the relevant docu- Labeling and Education Act (1990) and the FDA Food ments and conduct depositions about liability and Safety Modernization Act (2011). damages. • An interest in science is essential within the food and • Apply for summary judgment. If summary judgment is beverages domain: “You have to be willing to engage Practice Areas Practice denied, the case goes to trial. Attorneys determine the with scientific studies and grapple with them,” Miriam evidence and depositions to use, produce the exhibit Guggenheim points out. list, and decide on what sort of discovery or motions • Guggenheim also emphasizes the importance of time to advocate. management, especially as a regulatory attorney: “We • Go to trial. Handle post-trial steps. tend to work on several different matters at a time, com- • Attorneys for the plaintiff conduct due diligence be- pared to litigators or corporate attorneys who might fore filing a complaint, oppose motions to dismiss, work on one deal for an extended period. I handle 14 to defend class action certification and oppose summary 16 client matters on any given day, which is fun but can judgment. also be challenging.” However, she also notes that “the

159 www.chambers-associate.com Food & beverages, retail and franchising

Rankings in Chambers USA for people who have taken a year or two after college to go out into the real world, to do volunteer work or gain business experience. We find that when they come into Top Ranked the firm as a young associate they have a different, ben- Covington & Burling Gibson, Dunn & Crutcher eficial perspective.” Greenberg Traurig, PA Morgan, Lewis & Bockius Perkins Coie Current issues Seyfarth Shaw June 2020 Food and beverages Highly Recommended • There has been much debate and consumer concern Alston & Bird over labeling and advertising in recent years. Recent Arnold & Porter attention has been given to what constitutes ‘natural’ Foley & Lardner food as, at the time of writing, there is not yet a clear Goodwin Goulston & Storrs legal or regulatory definition. The past four years have Haynes and Boone been marked by a sharp rise in the number of lawsuits Holland & Knight filed that allege misrepresentation on labeling for Jenner & Block ‘natural’ products, including food and other consumer King & Spalding goods like laundry detergents. In a recent case against Latham & Watkins Burger King, a vegan customer argued they had been Mayer Brown tricked into believing the fast food chain’s ‘Impossi- Mintz Levin Cohn Ferris Glovsky and Popeo PC ble Whopper’ burgers (which are cooked on the same Paul, Weiss, Rifkind, Wharton & Garrison grills as other products) contained no meat residue. Pillsbury Winthrop Shaw Pittman Burger King asked for the proposed class action to Venable be dismissed, claiming that it never advertised its new For more detail on ranking tiers and locations, visit burgers as vegan. www.chambers.com • As a result, transparency is on the rise, as Miriam Guggenheim explains: “We’re seeing a continued interest by consumers to learn more about their food. Com- hours are still lower compared to typical litigation or cor- panies are intending to be more transparent about their porate practices.” products, by stating what the ingredients are and where • Deborah Coldwell, franchising litigator at Haynes they come from.” This can, however, create new prob- and Boone, flags the difference between a litigator’s lems: “They are using more plain English and can come and a corporate attorney’s schedule: “50% or more of up against regulatory bodies if they aren’t consistent my colleagues are transactional lawyers. They are very with defined terms.” busy at year end, whereas we are not so busy. However, • The FDA extended the deadline for when food man- we work really hard when we are going to trial – 24/7 in ufacturers will have to introduce a new ‘Nutrition some instances.” Facts’ label for their packaged foods. Manufacturers • Working with foreign jurisdictions is common for a with $10 million or more in food sales had until Janu- transactional franchising lawyer. “We do a significant ary 2020 to do so, while those with sales under that amount of work for US-based clients expanding inter- amount will have until January 2021. Martin Hahn tells Practice Areas nationally,” states Stuart Hershman, a franchising us that the introduction of the label has resulted in “a partner at DLA Piper. He explains that most overseas tremendous economic burden on the industry.” jurisdictions do not have governmental franchising • The increasing number of ‘meat alternatives’ has put agencies: “You have to comply with laws internation- pressure on the $200 billion a year meat industry in ally, including franchise-specific laws in an increasing the US. Plant-based substitutes are taking up an in- number of countries, but overall (there of course are creasingly large market share, and lab-grown meat exceptions) there isn’t government interaction and over- is on its way to the mainstream. There’s been debate sight like there is in the US.” In contrast, franchising about whether these substitute products should be litigators find that most brawls tend to be domestic in regulated by the FDA or US Department of Agriculture nature. “I have not seen that many cross-border court and how competition with traditional meat products cases,” Deborah Coldwell tells us. “Typically if they are should be managed. In January 2020, the California cross-border they end up in arbitration.” Plant Based Alliance was formed to help these types • Many firms actively seek out candidates with profes- of companies in California ward off government regu- sional work experience. Warren Karp, chair of Green- lations that could be harmful to their growth – the first berg Traurig’s global retail practice, notes: “We look of its kind.

160 Food & beverages, retail and franchising www.chambers-associate.com

• Like many practice areas, the food and beverages retailing to consumer-centric, omnichannel retailing market is becoming increasingly international in its where the consumer has multiple choices. They can get focus. Guggenheim reports: “Foreign companies are products from anywhere, delivered directly from a fulfill- interested in entering the US and domestic companies ment center or store.” are looking to acquire foreign companies and bring new • Amazon – the fifth biggest company in the US by rev- food products to the country.” enue – has been at the center of many legal challenges • The Agriculture Improvement Act of 2018 reinforced in recent years, from antitrust inquiries to product li- the prior Act of 2014; its biggest changes included the ability cases, plus issues of fraud and counterfeits. In removal of certain cannabis products from the Con- 2019, Nike took the decision to remove its products trolled Substances Act. As such, use of CBD has been from the site altogether, which could pose a worrying increasing in the mainstream over the past few years, precedent for the company. and this will be an area that continues to develop along • Intellectual property is an important strand of retail with the regulations surrounding it. work. Companies often look to protect their designs • After sugar taxes had made some headway under the under trade dress – a constituent of the Lanham Act. Obama administration, the tide seems to have turned. Examples include the shape of a HERSHEY KISS A few cities have their own soda taxes, but so far there chocolate, the Vans checkerboard pattern, and the red isn’t anything nationwide. The Pennsylvania Supreme sole of a Christian Louboutin shoe. Owner of Dr. Mar- Court upheld an appeal against the state’s beverage tens, AirWair, recently launched trade dress lawsuits tax in July 2018, but a follow-up with similar intentions against BooHoo, Nasty Gal and Pretty Little Thing for has been submitted, and Arizona, California and Michi- the infringement of its shoe designs. gan have passed legislation that prohibits local sugar • Products are also becoming ‘smarter’ in line with tech- taxes for the foreseeable future. nological developments. E-textiles are of great interest to apparel manufacturers, as well as to the military sector, which accounted for over 26% of the global Retail market share, according to research by Technavio. • The popularity of online shopping has inevitably af- In addition, US conglomerate DuPont has recently fected the commerce of bricks-and-mortar retailers; launched a range of ‘smart clothing’ aimed at the retail space in shopping malls has consequently be- healthcare and fitness industries, which incorporates come cheaper. Furthermore, the sector has suffered stretchable electronic inks and films that can trace the from the lackluster economy, leading to an increased wearer’s heart and breathing rates. number of companies filing for bankruptcy. 2019 saw 23 major US retailers file for bankruptcy, including Barneys New York, Diesel, Forever 21 and Sugarfina. Franchising This was up from 16 in 2018, when big names like • One of the big issues in the franchising market contin- Claire’s, Toys R Us, Kiko USA and Sears filed for bank- ues to be the ‘joint employer’ model. It has thrown up ruptcy. More are expected throughout 2020, particu- the following question: which party is responsible for larly in light of the economic impact of the coronavirus employees? The franchisor (the owner of the franchise) crisis. or the franchisee (the company or individual licensed • According to Deloitte US,the retail industry should to operate under the franchise)? The saga started in be ready for more economic change. The economy 2014 when the National Labor Relations Board decid- slowed in 2019: GDP growth declined from 3.1% in Q1 ed that McDonald’s could be held partly responsible to 1.9% in Q3, with a drop in investment growth. Given for its franchisees’ employees. Much has happened that the uncertainty surrounding trade tariffs is ex- since then with the 2015 Browning-Ferris case expected to continue, Deloitte predicts real GDP growth panding the definition of a joint employer, much to the to slow to 1.6 % in 2020. consternation of franchisors. This was then overturned • Retail company CEOs are being held more account- and reinstated in the years that followed, but the legal able for shaping company culture, as well as brand ping-pong is now closer to settling down. In April 2020, Practice Areas Practice reputational issues linked to their own conduct. 2019 the National Labor Relations Board introduced a new had the highest number of CEO departures (around rule clarifying that for a company to be considered a 1,500) since 2002, which in turn links to the employ- joint employer of a worker, it must have sway over key ment law aspects of retail work. terms of the worker’s employment, including hiring, • The digitalization of the retail market (via increased wages, hours and discipline. use of mobile devices and the spread of social media) • “Over the last two-plus years there has been an increas- has given rise to many opportunities for lawyers. War- ing effort by certain administrative agencies in the US to ren Karp identifies an important trend in this digital- hold franchisors liable for things that happen at the fran- ized retail market: “There is a move from multichannel chisee level,” Stuart Hershman tells us. Consequently,

161 www.chambers-associate.com Food & beverages, retail and franchising

a lot of franchising lawyers are advising on employ- • Technology also poses a challenge to the franchising ment dispute resolution matters. market, Deborah Coldwell notes. She explains that • McDonald’s is also at the center of another trend – as there are laws for everything “from drone delivery, the number of its franchisees increases, the founda- to online ordering, to website franchise sales,” add- tion of a National Owners Association has strayed ing: “Keeping up is going to be a challenge for lawyers dangerously close to a union in certain eyes. Though and companies because technology moves so quickly.” the group was incorporated as a nonprofit, its activities could be seen to resemble collective bargaining. Organizations such as this which resemble unions, but don’t have that official status, could have a profound effect on the nature between franchise owners and franchisees in the future. Practice Areas

162 Funds and investment management – Fried Frank www.chambers-associate.com

Funds and investment management – Fried Frank

Advising on the activities of hedge and private equity funds certainly keeps lawyers on their toes. For Fried Frank’s asset management whiz- zes, it’s the variety and ever-evolving nature of the practice that leads them to recommend becoming a lawyer in the area.

Chambers Associate: What does Fried Frank’s asset subgroup, I field regulatory questions about the Advisers management group do? Act, Investment Company Act and Securities Act from the asset management group but also from the M&A Lisa Schneider, partner: The Fried Frank asset manage- group and capital markets group. ment group represents hedge fund and private equity managers in all aspects of their businesses, including: CA: What do partners do? the structuring and offering of new funds and other LS: Working as a partner in this practice area is extreme- products; ongoing operations and strategic planning; ly satisfying, both professionally and personally. My day negotiations with investors; the structuring of new man- involves reviewing and negotiating complex agreements agement companies, and carried interest and compensa- and offering documents, working with clients to develop tion arrangements; advising on seed and stake transac- sound and innovative solutions to various issues, and tions; and negotiating the spin-out of fund teams from providing day-to-day advice on a variety of different top- larger institutions. We are known for representing some ics that touch upon the investment management space. of the most sophisticated fund managers in the industry, combining our technical skills with a commercial and practical mindset in order to best represent our clients. “Each phase of a fund’s life-cycle presents unique challenges that require different skills and play to different “We are known for representing strengths.” some of the most sophisticated fund managers in the industry.” CA: What are the best things about the practice? BH: Each phase of a fund’s life-cycle presents unique Bryan Hunkele, partner: We specialize in counseling challenges that require different skills and play to dif- large sponsors around the world, including Bain Capi- ferent strengths: (a) the structuring phase is thought- tal, BlackRock, Blue Bay, Brookfield, Fortress, Goldman intensive, and it emphasizes creativity and teamwork; Sachs, HPS Partners, Permira and many others. (b) drafting the fund documents requires diligence and writing skills; (c) fundraising and investor negotiation Joanna Rosenberg, associate: Half of the group focuses involves the use of management and personal skills, as on hedge fund formation and the other half focuses on well as the ability to think on one’s feet; and (d) the op- private equity fund formation. We also have a regula- erational phase, in which all the work one has done in the tory asset management subgroup (which I am a part of), other three phases is applied to real-world challenges, is which focuses on Advisers Act issues, as well as certain full of surprises and emphasizes critical thinking. Investment Company Act and Securities Act issues. JR: The regulatory asset management practice at Fried Practice Areas Practice CA: What kind of work can associates expect to do? Frank involves working on many different matters on JR: Day to day, associates draft and revise offering mem- any given day, which keeps things interesting and chal- oranda and governing documents for new private funds lenging. There are also certain questions that come up and negotiate investment management agreements. regularly, which creates a nice mix of consistent, familiar Fried Frank also has an active practice in the area of fund work and new issues that require deep and often creative manager M&A, and so asset management associates will thinking. also assist in due diligence relating to fund managers in which a client is purchasing a stake or the entire busi- LS: Because this practice area often involves provid- ness. As a member of the regulatory asset management ing counsel to hedge fund and private equity managers

163 www.chambers-associate.com Funds and investment management – Fried Frank

throughout their lifespans, attorneys are able to grow LS: One of the best parts of the asset management and develop longstanding relationships with clients. practice is that associates are offered the opportunity to In addition, our practice evolves as the fund industry have direct exposure to clients and to take on as much evolves, which is exciting and allows us to continually responsibility as they are comfortable with early on. It is work on new and interesting matters. the perfect practice area for an attorney looking to gain enormous experience, a wealth of knowledge and sig- CA: Which factors are currently affecting the practice nificant client exposure early in their career. area? JR: The condition of the financial markets can impact our clients’ ability to fundraise and to some extent the type “With hard work and the right set of of private funds clients are forming. In addition, the re- skills, associates could be leading the cent change in administration slowed the pace of SEC closing of a multibillion-dollar fund.” [Securities and Exchange Commission] rulemaking and, to some degree, SEC enforcement action. CA: Which opportunities are unique to Fried Frank? BH: I think our group provides a unique combination of “The condition of the financial markets lean staffing and high-profile matters. At our size, we do can impact our clients’ ability to not have the luxury to ask associates to review subscrip- fundraise and to some extent the type tion materials and investor questionnaires during their of private funds clients are forming.” first year. Of course, there will be some of that, but the professional opportunities our young associates enjoy (with appropriate supervision) are otherwise a year or LS: The industry has been digesting the new US tax leg- two ahead of what they might typically see elsewhere. islation and its impact on hedge funds and private equity funds. It will be interesting to see how the space evolves JR: Fried Frank is a place where hard work and quality as a result of these changes. work product are rewarded. If associates show a strong work ethic and an interest in the matters they are work- BH: In addition, we have seen that as more and more busi- ing on, they are sought out and given more responsibility nesses implement the ESG criteria into their investment and more challenging assignments. and operational frameworks, there has been a significant impact on fund and product launches. Specifically, we LS: Because the Fried Frank asset management group have noticed a greater interest in social impact funds, has extremely sophisticated, longstanding clients, I and increased investments generally in the renewable have had the opportunity to develop relationships with energy sector, eco-friendly products and manufacturing, wonderful people and work on the most interesting and and under-served communities. cutting-edge matters. The combination of Fried Frank’s legal acumen and the collegiality of the attorneys who CA: How can students keep up to date with trends in work here is unparalleled. the market? BH: The Wall Street Journal does a great job of covering CA: Do you have any words of advice for students in- the business elements of our practice area, while SEC terested in this area? releases and actions relating to the Investment Advisers BH: Pay attention to market news and try to understand Practice Areas Act provide a good avenue for getting to know the latest the business motivations behind what you read. The regulatory focus. separation between the practice of law and business is something of a myth, as a good lawyer needs to un- LS: Reading the newspaper and various free online in- derstand their clients’ business goals in order to provide dustry newsletters is a great place to start. meaningful legal advice.

CA: Where can new associates expect to be in five JR: I would suggest taking a class on securities regula- years’ time? tion. It helps to give high-level context to the work that BH: With hard work and the right set of skills, associates asset management associates do at the firm. I would also could be leading the closing of a multibillion-dollar fund recommend reading the newspaper. – the deals which will be in the news for the next three or four years.

164 www.chambers-associate.com Funds and investment management – Fried Frank

Authors

Lisa Schneider Bryan Hunkele Joanna Rosenberg Partner Partner Associate Practice Areas Practice

165 www.chambers-associate.com Government

Government

In a nutshell • When external services or goods are required, the gov- Government contracts lawyers “don’t just sit at their ernment will issue a procurement solicitation (or ‘Re- desks reviewing contracts,” says Richard Rector, chair quest for Proposal’). The process of procurement and of DLA Piper’s government contracts practice. “Actually, contracting is run by a government official called the what we do involves a broad range of legal skills, as over contracting officer. half of what we do is litigation.” Bid protests form the bulk • Lawyers help guide potential contractors through of contentious work, along with disputes involving costs the solicitation procedures, pointing out the key risk recovery or performance problems; lawyers also defend issues, how the evaluation factors will influence the contractors accused of fraud or other misconduct. In ad- selection decision, and how this contract differs from dition, attorneys here help contractors to navigate the previous ones. However, they do not advise clients on regulations and special rules tied to providing goods how to obtain a contract or how to market themselves. and services to federal government. Advising on sub- • Rand Allen of Wiley Rein says: “We advise a lot of com- contracts, scheduling and organizational conflicts are all panies on how to get into the government contracts are- common activities too. na without creating undue compliance risk, for instance by qualifying for a status which will minimize the intru- “Law firms that lobby are not selling access, they are sell- siveness of government in their business.” ing skills,” says Nick Allard, professor of law at Brooklyn • Government contracts tend to use ‘boilerplate,’ or Law School and former chair of Squire Patton Boggs’ standardized terms and conditions. In contrast to a lobbying, political and election law practice. “They are commercial setting, there isn’t as much room to nego- litigators serving as advocates in a broader array of arenas.” tiate the requirements that form part of the contract. More specifically, government relations lawyers direct- Lawyers also negotiate subcontracts and teaming ly lobby the federal and state government on behalf of agreements between contractors. a variety of businesses – including healthcare, education and defense entities – on specific legislation or ongoing issues. They promote or oppose new initiatives to Con- After the formation of the contract, lawyers act for both gress or the administration; attempt to persuade govern- plaintiffs (the disappointed bidders) and defendants (the ment to amend legislation; and try to convince courts awardees) during bid protests. A typical bid protest chal- to reinterpret laws. “You get exposed to a wide range of lenges the award of a contract at an administrative fo- industries,” says Richard Rector, “and so it never gets bor- rum: the US Government Accountability Office (GAO) or ing.” the US Court of Federal Claims (CFC). These cases are usually resolved over three months, which means associ- Political law specialists advise on the organization and ates don’t get bogged down by document review for pro- financing of election campaigns, which includes assist- longed periods. The GAO is required by statute to issue ing corporations and other groups with election-related a ruling within 100 days. Plaintiffs have ten days to put activities. On the litigation side, they help to challenge together protest documents, and government agencies decisions made by electoral authorities, such as the Fed- have 30 days to respond. CFC proceedings take about Practice Areas eral Election Commission. the same time, sometimes slightly longer. Associates prepare drafts of protest filings and identify applicable legal precedent. This involves close scrutiny of the “Law firms who lobby are not selling original Request for Proposal; the government agency’s access, they are selling skills.” award decision; and the proposals and negotiation responses submitted by both the awardee and the protes- tor. What lawyers do Government contracts • Disputes also arise over the performance of existing • Virtually every government agency procures external contracts. Lawyers represent contractors in alter- services, but the Department of Defense is far and native dispute resolution or litigation in front of the away the largest consumer. Other major areas are aer- Armed Services Board of Contract Appeals, the Civil- ospace, construction, healthcare, homeland security, ian Board of Contract Appeals, or the Court of Federal education and IT. Claims.

166 Government www.chambers-associate.com

Rankings in Chambers USA cate. We seek to understand our clients’ business, their mission and what they want to accomplish.”

Top Ranked Akin Gump Strauss Hauer & Feld Arnold & Porter Realities of the job Covington & Burling • “Government contracts is a very litigation-oriented area,” Crowell & Moring explains John Chierichella of Sheppard Mullin. “You Morrison & Foerster don’t just have the opportunity to litigate, though; you Perkins Coie get to do so in relation to things that are incredibly inter- Skadden, Arps, Slate, Meagher & Flom & Affiliates esting, whether it be a bid protest, debarment proceed- Wiley Rein ing, False Claims Act case or subcontract dispute.” • Bid protests are typically intense affairs, packed with Highly Recommended information that must be absorbed in a short space of Alston & Bird time. “If your eyes glaze over when reading a detailed Gibson, Dunn & Crutcher Holland & Knight technical or cost proposal, this is not the area for you,” K&L Gates says Tom McGovern, senior counsel at Hogan Lovells King & Spalding and former leader of its government contracts prac- Mayer Brown tice. Richard Rector of DLA Piper confirms that “you Pillsbury Winthrop Shaw Pittman have to have a very good analytical ability when review- Reed Smith ing a contract to understand how it applies to a particu- Sheppard, Mullin, Richter & Hampton lar industry. When we are interviewing, we look out for Troutman Sanders people who are detail-oriented and don’t shy away from Venable digging into the documents and enjoying the analysis Vinson & Elkins and the investigation.” WilmerHale • Associates working on a smaller bid protest may have For more detail on ranking tiers and locations, visit the opportunity to actually lead the case. During a www.chambers.com larger bid protest it’s more likely that they’ll work on a particular aspect of it. • Lawyers defend contractors against allegations of • Cost issues can be daunting to analyze due to the vast fraud, as well as waste and misconduct under various body of regulations and complex wording to grapple federal criminal and civil statutes, including the False with. However, Chierichella tells us that “if you can un- Claims Act. derstand that logic chain and overcome those concerns, • Lawyers also act in disputes between prime contrac- there’s a lot of benefit you can give to clients by working tors and subcontractors in federal and state courts. through cost issues to maximize the amount to be paid and the amount they will retain.” • While most traditional law practices deal with ques- Government relations tions pertaining to what the law is, political law mainly • Government relations lawyers are approached by cli- involves the question of what the law should be. ents from all industries who believe a certain piece of • Lobbyists’ main clients include corporations, trade as- legislation will benefit or harm their business, in order sociations, universities, healthcare institutions, states to get it promoted or changed. and municipalities. Lawyers also do pro bono lobbying • The service that government relations lawyers provide work on behalf of charities and other nonprofit organi- involves “analyzing laws, writing memoranda to clients zations. advising on legal provisions – telling them what their re- • “One of the most important things to understand is that sponsibilities are under new legislation – and preparing every company in the US is affected by the government’s advocacy pieces for hearings,” Allard tells us. policies,” Tom Boyd of Venable tells us. “Whether it’s in • Besides advocacy there’s legal research into current the form of legislation, regulation or the exercise of ex- Practice Areas Practice statutes, drafting of proposed rules and legislation, ecutive power, it’s going to impact the marketplace and and drafting of clients’ comments on legislation. every one of our clients.” • Government relations lawyers are a link between their • Allard describes the public policy process as “never- clients and politicians and administrators. But Allard ending,” adding that “anything that is done can be un- wants us to clear up a misunderstanding: “Lobbying done.” involves so much more than this image people have of • It is usually easier to shoot down a planned bill than to the glad-handing door-opener. That is not interesting or get one passed. high-end work. What we do is analyze, advise and advo- • “Whenever you’re representing a corporation, part of the picture will involve a high-profile public official,”

167 www.chambers-associate.com Government

says Ken Gross of Skadden. “So it’s vital to understand the additional 90-plus recommendations made by the how decisions will play out if they get picked up by the panel didn’t make it into legislation, but they may be media.” considered for the 2021 Act. • The famous ‘revolving door’ relationship between the • Federal contract spending reached $594 billion in administration and lobbying shops provides lawyers at 2019 – the highest ever. Most of the spending went to all levels with the opportunity to work in-house for the the Department of Defense, with spending increas- government. ing by $120 billion since 2015. Trump’s 2020 budget • “I think having some exposure to government service outlined even more military spending– a 5% increase is very helpful in this practice,” explains Gross. “You’re from 2019. essentially seeing the picture from the inside, which • Contracts designed solely for IT acquisitions – known certainly helps when dealing with the regulation side of as government-wide acquisition contracts (GWACs) – things.” David Nadler of Blank Rome confirms this: “I have grown with the aim of modernizing outdated IT would advise working for the government before a law infrastructure. These kinds of contracts can deliver firm, as it’s rewarding in its own right, but it also paints quickly on the acquisition of key telework equipment, a picture of what it’s like to work on both sides of the such as laptops or tablets, which was especially im- table.” portant in the aftermath of the lockdown measures • Government lawyers are also active at the state level. in place after the outbreak of COVID-19. Examples of Smaller state-based firms – grouped together into the GWACs include NASA’s Services for Enterprise-Wide State Capital Global Law Firm Group – advise on busi- Procurement and the National Institutes of Health ness regulation, ethics codes, campaign finance and Information Technology Acquisition and Assessment state government procurement. Center (NITAAC). • “Clients come from all over the globe,” Boyd says. “So • Federal contract cases to watch this year include the we’re not only interested in the political issues concern- likes of Amazon’s challenge to the Defense Depart- ing Washington, DC, but also the likes as they relate to ment over a $10 billion cloud computing contract client interests in London, Paris, Berlin and Brussels.” awarded to Microsoft, and the claims court’s review • “There is a relatively small Bar and you deal with the into whether the US Army wrongly awarded contracts same people regularly on the other side,” states Allen. for logistics services in an $82 billion procurement. “That generates more comity and less hostile behavior • Data security is a significant area of activity, par- than some lawyers are used to.” ticularly since Edward Snowden’s revelations about the activities of the security services. This affects all contractors who have access to government informa- Current issues tion, whether they store it on their own systems or are June 2020 tasked with securing the government’s own storage • Contractors and government are always at odds as facilities. they attempt to achieve the best prices from their re- • In addition, cybersecurity threats and noncompli- spective positions. Tom McGovern of Hogan Lovells ance with government cybersecurity regulations are explains that “contractors are consulting us for advice becoming an increasing concern in connection to the as to how to protect themselves from government budg- FCA. Two cybersecurity cases were brought under the et cuts and austerity measures.” FCA for the first time in 2019, and it’s likely we’ll see • Government contractors are coming under increased more in 2020. “Contractors are concerned about mount- scrutiny and pressure, particularly when it comes to ing cybersecurity threats,” emphasizes McGovern, Practice Areas alleged violations of the False Claims Act (FCA), which “both in relation to their own networks and those they imposes liability on people or companies that defraud maintain for government customers. The government is the US government. Civil recoveries under the FCA greatly concerned about the security of its own data en- rose to more than $3 billion in 2019 – cases related to trusted to contractors and expects contractors to adhere the healthcare industry accounted for the majority of to strict information assurance guidelines and to cooper- that sum. ate and share data about cyberattacks in order to coun- • The government is interested in streamlining the ter such threats. At the same time, there have been news process for acquiring and protesting government reports of government intelligence agencies attempting contracts. Based on recommendations from a gov- to access data in commercial networks, including those ernment-established panel (Section 809), provisions operated by their own contractors, which is somewhat were implemented into the 2020 National Defense ironic.” Authorization Act to streamline the procurement of • Government contractors have been integral to the im- consumption-based solutions (i.e. a combination of plementation of the Affordable Care Act (Obamacare). hardware, software and labor services for which an They have been “at the forefront of setting up govern- agency is billed based on measured usage). Most of ment websites, health insurance exchanges and provid-

168 Government www.chambers-associate.com

ing navigators to inform consumers of their various options,” explains McGovern. “This development is typical of this area of practice where the focus shifts depending on the government’s priorities of the day.” Further shifts could be on the horizon if the current administration’s continued efforts to repeal and replace Obamacare are successful. Practice Areas Practice

169 www.chambers-associate.com Government regulatory – Akin Gump

Government regulatory – Akin Gump

Keeping up with the government maelstrom has been a full-time job of late. For businesses to navigate and change the laws and regulations that govern their activities, they are in need of some prodigious legal expertise. Akin Gump is one firm which provides exactly that.

Chambers Associate: What is government regulatory financial restructuring groups, who engage us as spe- law? cialists for their M&A work and credit facilities. On the M&A side, we conduct international trade diligence on Alexis G. Guinan, counsel: Laws and regulations ad- the proposed target to evaluate the level of interna- ministered or enforced by a government agency. tional risk associated with acquiring an interest in that target. We also review sanctions, export controls, anti- Shea Boyd, associate: The average person might not corruption and anti-money laundering representations realize how much their life is influenced by the deci- and covenants under multimillion-/billion-dollar loan sions and ‘rules’ created by the various federal and facilities. state agencies, from the technology they use every day to the practices keeping them safe as they walk down SB: My practice area, communications and information the street. Another lesser-known fact is that these technology, is focused on businesses regulated by the agencies create and modify these rules with substan- US Federal Communications Commission (FCC), which tial input from the individuals and industries they seek includes many more businesses than one might guess. to regulate. Good legal counsel can help inform and I find myself working frequently with many other prac- focus this input. tice groups in the firm. One day I may be working with the corporate group on drafting an agreement for the purchase of communications assets; the next day I “My practice area, communications might be working with the investment funds group on and information technology, is focused understanding the impact of proposed rule changes at on businesses regulated by the US the FCC; then I might round out the week working with Federal Communications Commission our government relations practice to advocate for favorable legislation for our communications clients. (FCC), which includes many more businesses than one might guess.” CA: What challenges come with the practice?

Mallory Jones, associate: Government regulatory law AG: Sometimes it is difficult to keep up with political also involves advocating on behalf of clients for chang- and legal developments that impact our practice these Practice Areas es in the regulatory framework, including through days! But this also makes working in international trade comment letters, agency meetings, and other forms of constantly challenging and interesting. agency engagement.

CA: How do specialties and different areas of work “The key to overcoming this challenge overlap? is staying organized and leveraging Stacey Mitchell, partner: A broad-ranging regula- technology to make your life easier. tory practice is essential to law firms to assist a client This is not a law school class that I’m across all aspects of their business. Any one client will have any number of regulatory issues; we overlap and aware of yet, but perhaps it should collaborate all the time. be!”

AG: I specialize in sanctions and export controls, which SB: Because Akin Gump has such diverse clients, and fall under the umbrella of international trade. My work the communications group intersects with so many frequently intersects with that of our corporate and practice areas, the range of issues on which you need

170 Government regulatory – Akin Gump www.chambers-associate.com

to have the latest information is wide. However, as I have “One of the many reasons that I enjoy found with many things in law practice, the key to over- government regulatory law is that it is coming this challenge is staying organized and leverag- constantly changing.” ing technology to make your life easier. This is not a law school class that I’m aware of yet, but perhaps it should be! AG: I recently worked on a matter for a foreign conglomerate that was shipping agricultural products through a MJ: Some of our most challenging projects arise when body of water that necessitated payments to a party that clients have developed innovative pharmaceutical prod- was designated by US sanctions authorities. It raised ucts that do not neatly fit within an existing regulatory questions of whether such payments were subject to US category. These projects require creative thinking and jurisdiction (and, therefore, illegal), and also presented a advocacy work to develop solutions that both allow for significant policy question for the US sanctions authori- appropriate regulatory oversight and ensure patient ac- ties given the level of trade that was occurring through cess to potentially life-saving treatments. that particular body of water.

CA: What roles do associates, partners and counsel CA: What trends or factors are currently influencing play in matters? the work you do?

MJ: In general, with guidance from the partner, associ- SM: This current administration has been more focused ates conduct research and draft work product, which on the trade sphere rather than environmental. That said, can range from formal memos to slide deck presenta- regulatory practices are not meant to have many fluctuations to bulleted talking points. Partners work with as- tions – the concept is for regulated industry to not have to sociates throughout the drafting process and provide readjust to every new administration that comes in. feedback. Associates also frequently take an active role in strategy discussions with the partner and the client AG: Unpredictability and increased sanctions activity as regarding the team’s approach to a particular matter. On a result of the Trump administration. This makes it chal- most matters, associates have the opportunity to interact lenging, among other reasons, to advise clients with re- with the client throughout the project. spect to risk associated with prospective business activities. SM: Associates tend to research the law and identify gray areas. But as a partner, you talk with clients about MJ: My work has been influenced by technological ad- risks and exposure, to ensure that the client remains in vancements in many aspects of the healthcare field, compliance while meeting their business objectives. from pharmaceutical development to the provision of You’ve also got to be forward-looking to see what might care through telemedicine. Indeed, healthcare reform catch people off guard. will continue to transform how healthcare is paid for, delivered and regulated. Additionally, we are currently see- AG: The partner will focus on communications with the ing increased congressional focus on privacy issues, and client in terms of the scope of work and deliverables. The state legislatures have also been active in this area. associate will perform the underlying factual and legal research and prepare initial drafts of work product. The CA: How do you see the practice evolving in the future? counsel will oversee the associate’s work and act as an alternative point of contact for the client. MJ: One of the many reasons that I enjoy government regulatory law is that it is constantly changing. I am CA: Can you tell us about a recent matter you worked forced not only to think about how an existing or pro- on that you found notable? posed legal framework affects our clients, but also to envision what the ideal legal framework looks like for a MJ: I worked on the Akin Gump team that provided coun- particular client and to strategize how we can help make Practice Areas Practice sel to a pharmaceutical company bringing a first-of-its- that vision a reality. kind digital version of an antipsychotic drug to market. The drug incorporates a tiny digital sensor embedded SM: Environmental law is going to evolve around the need in the pill itself. When swallowed, the sensor sends a for sustainability and the scope of climate change. Some signal to a patch worn by the patient, which then relays of this is already happening at the state level, though not the signal to a smartphone, confirming adherence to the necessarily at the federal level. This will include areas regimen. I provided counsel to the client on cutting-edge including drinking water and species protection, not just issues regarding privacy. simply clean air – many aspects of the law will be modified to ensure resilience in the face of climate change.

171 Government regulatory – Akin Gump www.chambers-associate.com

“Find a professor at your law school area, and form a relationship with them. Take him or her who specializes in this area, and form a out to coffee and ask them what they think you should relationship with them. Take him or her be paying attention to. Ultimately, this relationship could out to coffee and ask them what they be more valuable than a subscription to Comm Daily, although you should probably get that as well. think you should be paying attention to.” AG: Doing coursework that covers international trade, researching a legal journal article on cutting-edge issues AG: There are so many variables that feed into interna- or assisting a professor in their research. Also, fi nd peo- tional trade law: foreign policy, national security, the ad- ple who work in international trade and ask them about ministration, the economy, etc. It is tough to forecast! But what they do. with an increasingly global world, I imagine these areas of law will become increasingly prevalent and complex. MJ: I would encourage students interested in government regulatory law to consider what topics most in- CA: Where can new junior associates expect to be in trigue them (healthcare, environment, energy, interna- fi ve years’ time? tional trade, etc.). Students should then spend some time familiarizing themselves with the key aspects of that MJ: The possibilities are endless! As junior associates fi eld – get to know the major statutes, the biggest stake- gain knowledge and experience at Akin Gump, they can holders and potential changes coming down the line. expect to take a larger role in handling projects, develop meaningful relationships with clients and cultivate ex- CA: What separates the Akin Gump team from its pertise in areas of regulatory law that interest them. peers?

SB: Wherever you want to be. While this sounds like SB: One of the unique things that I have found about Akin fl ippant advice, as a regulatory lawyer you are gaining Gump is our strong connection to government, which is the expertise that will allow you to pursue any path you particularly relevant to the regulatory practices. When- choose, whether that is staying at your law fi rm, going ever I have a question about a particular agency outside in-house, transitioning into the government or forgoing of my area of expertise, there is more often than not an legal practice for a more business-oriented role. Akin Gump attorney down the hall who worked there and can provide the type of insight into how things work that AG: Within fi ve years, a junior associate would have been can’t be found in a Google search or the trade press. exposed to different areas of trade law (customs, policy, export controls, etc.) and begun focusing in one or two AG: Akin Gump has a variety of regulatory practices: of those areas. A successful associate would be a go-to healthcare/life sciences, environmental, international person for managing projects and client relationships for trade, energy, etc. It is fairly common to work across partners. practice areas on projects and leverage the expertise of colleagues in other practice groups. Akin Gump’s public CA: How can students keep up to date and get a head- policy arm also provides a window into changes in policy start in the practice? and the law that may have an impact for clients.

SB: The best thing that a law student with an interest in Practice Areas communications and information technology can do is to fi nd a professor at your law school who specializes in this

Authors

Alexis G Guinan Shea Boyd Mallory Jones Stacey Mitchell Counsel Associate Associate Partner

172 Healthcare – Waller www.chambers-associate.com

Healthcare – Waller

Based in Nashville – the nation’s healthcare capital – Waller is one of the leading firms in the US for healthcare law. We caught up with a few of its seasoned attorneys to discover what it’s like to become a lawyer in this broad and rapidly evolving area.

Chambers Associate: What is healthcare law? “The healthcare industry is so wide- ranging, and so highly regulated, that J.D. Thomas, partner: Generally speaking, healthcare virtually any company or individual law covers the range of services that clients in the health- doing business will need legal advice care industry need which are specific or related to the unique business and regulatory issues of that industry. and experienced representation.” These include healthcare-related financial transactions, healthcare regulatory work, and litigation that involves CA: What does a junior associate do in healthcare? healthcare rules and regulations. JDT: A junior associate can expect to be asked to support John Haubenreich, partner: Practicing in healthcare the firm’s more senior lawyers. This can include research- law can mean anything from high-stakes litigation with ing and developing an understanding of the unique is- the government; detailed analysis of real estate trans- sues that affect healthcare clients, reviewing contracts actions; negotiating multimillion-dollar mergers and ac- and other documents as part of regulatory diligence, or quisitions; conducting sensitive and confidential internal supporting attorneys conducting witness interviews or investigations; securing trademarks, patents and copy- internal investigations for healthcare clients in response rights; and more. Clients include hospitals, drug manu- to government inquiries and enforcement actions. Given facturers, physician groups, insurance companies, indi- the nature of Waller’s healthcare practice, junior associ- vidual doctors and other healthcare employees, products ates are exposed to the unique nature of healthcare law and software creators, and startups, among many others. early and often. The healthcare industry is so wide-ranging, and so highly regulated, that virtually any company or individual doing JH: Junior associates can do anything from drafting con- business will need legal advice and experienced repre- tracts and agreements; conducting legal research and sentation, at many different points – and in many different drafting opinions and memoranda for the client; work- contexts – during the course of their business. ing on discovery and legal briefs; helping interview witnesses and preparing investigation reports; and, in many Kim Harvey Looney, partner: Healthcare is a highly reg- cases, directly interacting with clients, opposing counsel, ulated area of the law, both from a federal and a state and – in the case of litigation – appearing in court. perspective. It encompasses multiple disciplines, including regulatory, transactional, litigation, real estate, em- KHL: The duties of a healthcare junior associate hinge on ployment, intellectual property, tax and more. Health law the particular group in which they practice. A junior as- is constantly changing, and you’ll need to keep up. Com- sociate generally supports those attorneys who are more plex regulations impact every merger, acquisition, joint senior – whether it be a senior associate or a partner. Jun- venture, finance and real estate transaction, and virtually ior associates will be charged with completing specific every contractual arrangement. Healthcare attorneys tasks in areas that will help them learn the nuances of Practice Areas Practice must structure contracts and transactions with an unwa- healthcare law. This may include reviewing contracts and vering eye toward the regulatory overlay. The stakes are other agreements as part of due diligence in a transac- high too because noncompliance can be costly for cli- tional context, drafting agreements, conducting legal ents. Healthcare attorneys need to be able to help clients research related to operational issues for clients, draft- understand and evaluate any potential risks associated ing and reviewing leases, conducting witness interviews, with operational or transactional matters. or assisting with internal investigations for healthcare clients in response to government investigations and enforcement actions.

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CA: What does a senior associate do in healthcare? solutions to pressing issues. It’s not uncommon for a client’s strategic objective to run headlong into a regula- JDT: Senior associates are expected to take on more of a tory roadblock. The healthcare partner’s job is to map the leadership role in the matters they work on. For regulato- compliant path around the roadblock while still achiev- ry lawyers, this can include managing compliance issues ing the client’s objectives. related to specific corporate transactions or researching questions posed by clients about specific operations is- The healthcare partner can become an essential part of sues. For litigation associates, this can include manag- the client’s in-house team, ensuring that the client un- ing an internal investigation; responding to a complaint; derstands what can and cannot be done and constantly identifying and researching specific legal or regulatory evaluating the risks. Partners take the lead in maintain- issues; and developing overall themes or defensive strat- ing and growing relationships with existing clients and egies. developing new business with new clients. In addition, partners must manage the workload for the members of JH: Senior associates tend to take on more responsibility his or her team. Partners are also expected to be active for consulting on strategy for deals and litigation, becom- in the community, with Bar organizations, or with industry ing more familiar with clients and working to maintain groups. relationships and expand their role with the client, and taking a more direct lead in negotiations and litigation, oftentimes taking the day-to-day lead on many matters. “Another fascinating element is the entrepreneurial nature of the industry. KHL: What senior associates do will also depend on There are always new ideas and new the particular group in which they practice. In general, clients who need legal advice.” though, senior associates are expected to take on more responsibility and serve increasingly in leadership roles. They’ll likely take charge of some of the day-to-day is- CA: What are the highs and lows of practicing in your sues as well as discrete parts of the client relationship. area?

CA: What does a partner do in healthcare? JDT: The best part about the healthcare practice is that it is cutting-edge and dynamic. It is always changing, and JDT: In addition to managing the work done by senior good lawyers have to keep pace with those changes to and junior associates, partners in the healthcare group give their clients the best advice. Another fascinating are expected to have their eye on the high-level strategic element is the entrepreneurial nature of the industry. issues their clients need to be aware of. This can include There are always new ideas and new clients who need identifying issues that a client needs to consider when legal advice. No day or issue is ever the same. contemplating a particular corporate deal; advising a client on what daily operational issues may be of particular One of the hardest aspects of the practice is advising concern; or assessing the litigation or compliance risk clients who have a significant regulatory issue that may of a particular event. In addition, partners are expected have a material effect on their business and who didn’t to keep abreast of changes in the healthcare regulatory get good advice in the first instance. Sometimes there’s landscape, and how that may affect their clients and the very little you can do to help those clients, and that can advice they give, whether it be with regard to a particular be particularly frustrating. Practice Areas deal, a piece of litigation or a government investigation. JH: Highs include some of the biggest litigation and deals JH: Partners take the lead on maintaining client relation- in the legal system, particularly because the industry ships, bringing in new business, directing overall strate- continues to grow at a rapid pace; interesting and chal- gy for deals and litigation and, especially for high-profile lenging work given the tightly regulated environment; matters, handling important appearances in court, meet- and the experience of being an expert in a sought-after ings with the government, opposing counsel, and/or sen- field. Lows sometimes include frustration at the level of ior management or the board of directors of the client. detail and roadblocks often encountered (given the number of laws and regulations involved) and the continually KHL: A healthcare partner must see the big picture in changing nature of the industry and the laws and regula- whatever they are working on. Partners are responsible tions governing it. for identifying strategic, operational, governance and compliance issues, and providing the client with work- KHL: Healthcare law is simultaneously challenging and able solutions to their issues. A healthcare partner needs fascinating. The ever-changing regulatory backdrop a blend of experience and creativity to find alternative means there’s never a dull moment. Constant change,

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however, means healthcare attorneys must keep pace care litigators are lawyers who are very rules-based (and in order to represent clients effectively. Young lawyers thus comfortable with the regulations which may apply) seeking a static, unchanging area of the law in which to but also strong advocates that enjoy being on their feet practice should probably explore non-healthcare options. and arguing a position.

Another challenge in healthcare law is that healthcare attorneys sometimes have to deliver advice that they know “Students need to pay attention to won’t be well received by the client – especially if the cli- the overall shifts in the industry, such ent has received conflicting advice from another lawyer as changes to how healthcare is who does not specialize in healthcare law. Particularly reimbursed and how it is delivered.” challenging is having to explain that options previously available to them have been eliminated by new regulations or new regulatory interpretations of existing law or JH: Very much so – healthcare lawyers run the gamut regulations. from folks who would not be caught dead in court (for example, some corporate and regulatory attorneys) to CA: Which qualities make for a good healthcare law- lawyers who relish the chance to go to battle with oppos- yer? ing counsel and/or the government. Healthcare law is so broad, and encompasses so many different areas of law, JDT: A good healthcare lawyer is someone who has an that virtually every personality type that exists can find a inquisitive mind and really enjoys learning about what niche in which to practice comfortably. their clients do on a day-to-day basis, but is also a careful thinker and very detailed-oriented. The healthcare KHL: Every personality can find a place in healthcare industry is subject to so many regulations, and the appli- law because virtually every legal discipline can intersect cation of those regulations is very fact-specific. A good with healthcare. Healthcare organizations need litiga- healthcare lawyer is going to know the regulations, know tors, regulatory specialists, transactional attorneys, tax the law and know what their client does, and be able to lawyers, and more. give advice based on an understanding of how all those things interact. CA: What are the current issues in healthcare that law students should be aware of? JH: A good healthcare lawyer will enjoy learning new things, will be analytical and attentive to detail, and will JDT: On a macro level, I think students need to pay atten- not be afraid of dealing with the government (or having tion to the overall shifts in the industry, such as changes to think about dealing with the government). If you can’t to how healthcare is reimbursed and how it is delivered. see yourself working in a highly regulated industry – or if While they may have the same names, the clients that the prospect just makes you too nervous – then you might law students are going to be representing five years from consider looking at other opportunities. now will be fundamentally different organizations than the ones we’re dealing with today. On a more granular KHL: First and foremost, as with many areas of the level, I think students should pick something that inter- law, a healthcare lawyer must be detail-oriented. There ests them and dive in. I do a lot of anti-kickback related are few broad brushes in healthcare because of all the work, so I am always paying attention to developments in regulatory nuances involved. It is filled with challenges that area. See what interests you, and become an expert. and changes. A healthcare lawyer has to enjoy learning about the client’s business and goals and to have an in- KHL: The biggest current issues in the industry involve quisitive mind. Mental agility is a must. The healthcare changes to healthcare delivery systems and payment lawyer should be able to identify options and associated models. These changes directly impact the business challenges, benefits and risks in a way the client under- models used by healthcare providers and investors. stands. Practice Areas Practice

CA: Do you find that the different specialties attract “Technology could have a massive different personalities? impact on the healthcare industry.”

JDT: In the healthcare field, I find that the most detail- CA: What does the future of the sector look like? oriented lawyers often do regulatory or operational work. They tend to be people who have an encyclopedic knowl- JDT: The biggest issues on the horizon are the continued edge of the Code of Federal Regulations (CFR) that they pressure on reimbursement and the changes to the way can draw on in the advice they give. I think a lot of healthcare is delivered. Companies are looking for faster and

175 www.chambers-associate.com Healthcare – Waller

less expensive ways to deliver the same care. The big- know the macro issues as well as their specialty, and gest impediment to that is going to be regulations that they know the lingo. The more of that you can pick up, don’t keep pace. The law students of today will be asked the better the advice and counsel you’ll be able to give. by clients to help them create those new care models while still keeping an eye to regulatory requirements JH: I would highly recommend getting some on-the- that may not have been written with those new models ground experience in the healthcare industry if at all in mind. possible, whether working or interning at a hospital, healthcare company, startup, or anything else connected JH: Depending on the regulatory developments, technol- with the industry. Seeing the business and patient care ogy could have a massive impact on the healthcare inside of things is totally different from coming at it from a dustry. The model is moving toward more telehealth with legal perspective, and getting that experience will be (1) the advent of advanced virtual reality/augmented reality, invaluable later in a person’s career and (2) make a per- as well as advanced diagnosis via artificial intelligence son a more highly sought-after attorney. (AI) and machine-learning systems. Combined with the impact of medical records portability (e.g. the Apple initi- KHL: Anything a student can do to learn the industry is ative to keep at least some medical records on a person’s important. On-the-ground experience with a healthcare phone), the healthcare sector could become much more provider, consulting company, healthcare company or an competitive and fragmented than it is now. If changes entity on the financing side of healthcare would be ben- in payors happen as well, the healthcare industry could eficial. You’ll need to know the lingo. While you will be look very different in ten to 15 years than it does now. taught many things as a new lawyer, it is helpful if the person you will be working with can see that you have CA: How can law students brush up on their knowl- already taken the initiative to learn some of the basics edge of the healthcare market? about healthcare law.

JH: The American Health Lawyers Association (AHLA) publishes an excellent newsletter with healthcare news “Good healthcare lawyers know the that I highly recommend; the AHLA also has law student industry. They know the macro issues memberships which are affordable, and hosts great con- as well as their specialty, and they know ferences. Same thing with the ABA Health Law Section, the lingo.” particularly its publication ‘The Health Lawyer,’ which is indispensable. In terms of reading about health law, I would recommend keeping up with technological de- CA: What opportunities in this practice are unique to velopments via sites like Ars Technica, The Verge and Waller? TechCrunch. JH: Waller’s depth and breadth of experience in health- JDT: In addition, sources like Modern Healthcare, care law is unmatched anywhere in the country. Nowhere Law360 and Fierce Healthcare are all excellent places else can you find the broad array of opportunities, includ- to keep apprised of developments and learn more about ing corporate and deal work; high-stakes litigation; gov- the industry as a whole. ernment and internal investigations; finance, bankruptcy and restructuring; real estate; labor and employment; KHL: Students who are interested in healthcare should intellectual property; and regulatory work. Nowhere else Practice Areas take every opportunity to familiarize themselves with can you collaborate with the country’s leading attorneys healthcare issues by taking specialized healthcare class- in any number of specialties, across hundreds of cli- es, joining organizations like the AHLA and/or the Health ents, from some of the biggest healthcare players in the Law Section of the American Bar Association – both of world down to local physicians and startups that need a which are free for students. These organizations offer a good lawyer. Finally, the history, structure, and culture of wealth of information about healthcare and host webi- Waller rewards attorneys who want to take responsibility nars and conferences on emerging issues and trends in and develop their careers early, unlike most of the other healthcare law. law firms in this space; working here means real collaboration and chances to lead early in a person’s career. CA: Alongside being a summer associate, what other experiences would you advise students interested in JDT: In the healthcare industry the opportunities are healthcare law to obtain? boundless. There is never a shortage of interesting work or unique issues. Waller represents the top names in JDT: Read about and follow changes to the industry as a healthcare and has represented clients at the forefront whole. Good healthcare lawyers know the industry. They of many of the seminal changes in the industry. We strive

176 www.chambers-associate.com Healthcare – Waller

to match our clients’ entrepreneurial pace and are al- you choose. Because there are so many innovative start- ways ready to give advice on the next big idea, assist a ups you also get the opportunity to work with those who client who may face signifi cant and complicated regula- are entrepreneurial and are the movers and shakers in tory issues, or represent a client in a bet-the-company defi ning what is important in healthcare. Waller rewards matter with the Department of Justice. attorneys who can be creative and work collaboratively with the clients to ensure they are successful. Focusing KHL: While Waller is a full-service fi rm representing cli- on healthcare allows our attorneys to specialize in all ar- ents in many different industries, the fi rm has earned a eas of the law – regulatory, transactional, employment, national reputation for its fi ve decades of healthcare ex- real estate, tax, litigation – the list goes on and on. The perience. The opportunities are endless if you are inter- work is fascinating and Waller has a great group of attor- ested in healthcare. Waller has the sophisticated clients neys to help you learn the industry, in whatever capacity to keep you on your toes and give you the ability to learn or area you choose. the ins and outs of healthcare law, in whatever capacity

Authors

J D Thomas John Haubenreich Kim Harvey Looney Partner Partner Partner Practice Areas Practice

177 www.chambers-associate.com Healthcare

Healthcare

In a nutshell According to Jeffrey Schneider of Hogan Lovells, Healthcare is an industry-specific practice area that en- however, “these are usually very complicated deals compasses a number of traditional law practices such as because of the regulatory constraints that exist, so you corporate and litigation. Because the industry is highly have to structure them in ways that you might not in regulated, specialist healthcare lawyers are often need- other industries.” ed to monitor and react to new regulations.

Typically, the matters that healthcare lawyers deal with Healthcare: litigation encompass three different categories. First is the trans- • Litigation work – especially in relation to govern- actional element – essentially the buying or selling of ment investigations – tends to be more sophisticated, healthcare businesses. Second is any litigation among attracting more experienced practitioners. healthcare companies, and third is advising on the regu- • Government-funded Medicare and Medicaid pay- latory sphere and in relation to any governmental legisla- ments are a major source of litigation and government tive issues. investigations. The set of rules surrounding this area is extensive, and it affects a lot of layers of the health- Healthcare is a massive part of the US economy. In 2019 care infrastructure. healthcare spending was almost 18% of GDP, and by • Healthcare and life sciences practices see a lot of qui 2027 it is predicted to account for just under one-fifth tam litigation – cases in which someone who assists of the country’s economy. Many major firms have health- with a government prosecution can receive all or part care practices and there are many niche or boutique of the penalty imposed. health firms, with many of them tied to specific states.

It is also a practice that continually evolves because of Healthcare: advice ever-changing laws. The passing of the Patient Protec- • Outside the times when healthcare lawyers are called tion and Affordable Care Act in March 2010 (aka Oba- in for litigation and transactions, they are constantly macare), for example, remains a landmark moment. One providing regulatory advice. Schneider says: “It’s thing is for certain: the nationwide demand for health- about making sure clients comply with the vast array of care advice and representation has never been greater. regulations out there that limit a company’s conduct, as well as helping clients think through problems and do Clients include investment funds who are interested in things in the correct manner.” investing in healthcare, and established providers, like • The advice covers more than just the regulatory hospitals. side. “There are nonregulatory issues to deal with as well, such as contractual issues with physicians and medical staff relationships,” says Dennis Barry, lec- What lawyers do turer at the University of Virginia and former partner Healthcare: transactional at King & Spalding. Practice Areas • Healthcare lawyers are sometimes brought in as trou- • Among the key pieces of legislation governing Medi- bleshooters at the same stage of a deal that tax and an- care fraud and abuse are the antikickback law and titrust attorneys are brought in (see Corporate Law). the Stark Law. The latter governs physicians’ referral This is often the case for smaller BigLaw health prac- of patients to medical facilities in which that physician tices and local healthcare boutiques. has a financial interest. • At other times healthcare lawyers will run a deal from • Federal antitrust laws and Food & Drug Administra- soup to nuts. This happens when there are numerous tion regulations also form an important component of health industry clients or statutes involved, so lawyers health lawyers’ work. who understand the regulatory context of a deal need to be involved from the outset. This happens more often in larger BigLaw healthcare practices and bou- Realities of the job tiques, but is increasingly common given the complex- • “Like every lawyer you have to be able to listen and to ity of new healthcare reforms. communicate but I think particularly for healthcare law • Healthcare transactional work involves putting a you have to be able to read the law and fully understand deal together and doing the due diligence as normal. its nuances. It is a highly regulatory practice area so you

178 Healthcare www.chambers-associate.com

Rankings in Chambers USA • On working hours, Kornreich states: “I think they are reasonable on average. This is generally because of the nature of people as they tend to be more willing to toler- Top Ranked ate personal lives on the part of their employees.” Alston & Bird Arnold & Porter • “I think what I like the most is I’m representing clients Covington & Burling who are dedicated to making people better. It is a very Duane Morris human-orientated practice. It’s not just about num- Epstein Becker & Green PC bers or strategy or markets. The consumers really mat- Fox Rothschild ter,” says Greg Luce of Skadden. K&L Gates • To succeed in this practice area Luce goes on to King & Spalding say: “You have to have a thorough understanding of how Nelson Mullins Riley & Scarborough this business and its sectors work. Every industry has its Proskauer Rose qualities but you need to understand how a healthcare Reed Smith provider or manufacturer operates to understand the im- Ropes & Gray Sidley Austin plications of the legal regime. You really need to know Waller your client.” • Luce continues in offering general career advice for Highly Recommended this practice area: “I think you need to match your ex- Akin Gump Strauss Hauer & Feld pectations to your interests. If you want to be a litigator Choate Hall & Stewart and test yourself and you want to be in the cauldron of Crowell & Moring a courtroom then do. If you want to be in healthcare and Debevoise & Plimpton get into the policy and regulations and are interested in Foley & Lardner how the industry is evolving, it is a great field. It is an Foley Hoag area that offers a lot of opportunities for entrepreneurial Gibbons P.C. Greenberg Traurig, PA thinkers.” Haynes and Boone • “You need to be solution-orientated and practical. There Holland & Knight is a lot of gray area in the law because it is always de- Jackson Walker veloping so you have to review the facts and law care- Katten fully and provide a practical solution. It is a very complex Latham & Watkins practice area so you need to be able to take something Mintz Levin Cohn Ferris Glovsky and Popeo PC complicated and explain it in a straightforward way for Morgan, Lewis & Bockius your clients,” says Jim Owens of McDermott Will & Seyfarth Shaw Emery. Sheppard, Mullin, Richter & Hampton Owens tell us his favorite aspect of working in health- Skadden, Arps, Slate, Meagher & Flom & Affiliates • Thompson & Knight care: “I love representing providers. Doctors and nurses Venable and other healthcare professionals want to help people. They have good intentions and are very selfless – it For more detail on ranking tiers and locations, visit makes me happy to work with those people. Everyone www.chambers.com has healthcare in their life, it’s a personal thing. To be able to work in an industry that is doing good is rewarding.” cannot be afraid of diving into statutory text and regu- • However Owens warns against the trickier aspects of latory text,” says Edward S. Kornreich of Proskauer the practice area: “The amount of change is difficult so Rose. you have to keep on top of it. You always have to check • Kornreich continues: “The joy I get from solving a prob- what the current law is as you deliver advice. There are lem for a client is what drives the practice. In healthcare, so many aspects to what we do, which makes it very clients tend to be people who are interested in serving complicated.” Practice Areas Practice the public and by solving any issues you advance the • “I would say that if you have an interest in healthcare or public interest.” background in healthcare you should consider this field. • Kornreich adds that the type of person who would In the US the population is aging and the demand is ris- thrive in this area would be “somebody who is a good ing. Because of this demand it will be a specialism in de- communicator, thoughtful and has the ability to and en- mand,” Owens tell us. joys reading, understanding and explaining the law, as well as applying it in various contexts. It is also useful to have someone who is orientated toward social welfare.”

179 www.chambers-associate.com Healthcare

Current issues macare remains a central talking point in healthcare June 2020 law. So far it has withstood two challenges before the • Challenges arising in the COVID-19 pandemic domi- Supreme Court, as adversary groups and the Trump nate the healthcare sector. Law firms are busy advis- administration continue to pursue efforts to have the ing clients on how to navigate the uncertainties and law repealed. The Act will face its third challenge be- unprecedented challenges connected to the outbreak. fore the Supreme Court later in 2020, after the Act’s Healthcare providers for example may have legal insurance mandate (which stipulates that people must questions as and when they need to change how they have health insurance) was ruled unlawful by a federal usually operate as a direct result of the pandemic. appeals court in New Orleans. ACA opponents argue • In March 2020 the Coronavirus Aid, Relief, and Eco- that the ruling throws the constitutionality of the en- nomic Security Act (CARES Act) was signed into law tire Act into question. If the challenge is successful, to deal with the economic effects of COVID-19, pump- the ACA could be repealed entirely. A decision is ex- ing $2 trillion worth of resources into the US economy. pected in the first half of 2021, so keep an eye out for $100 billion of this is reserved for bodies in the health that. sector, including hospitals and other healthcare pro- • One contested stipulation of Obamacare is its con- viders, to offset financial challenges resulting from traceptive mandate, which sets out that employer- COVID-19. It’s an eyewatering figure, but given the sponsored health insurance plans must include con- enormity of the emergency, some industry groups fear traception coverage for women. In 2017, the Trump it will not be not enough to stem severe financial re- administration made it possible for any private em- percussions. ployer to seek exemption from the mandate on re- • The Act will enable pharmaceutical companies to ligious or moral grounds. The Supreme Court is cur- work more closely with government with a view to rently considering whether health officials had the researching and developing products in response to authority to introduce these policies. the pandemic. This includes efforts to find a vaccine for the disease – $3.5 billion has been allocated to the government’s Biomedical Advanced Research and De- Learn about current healthcare issues from the lawyers velopment Authority (BARDA) for this purpose. navigating them: • As unemployment rises and millions of people find themselves without employer health benefits, a big “The healthcare industry is so wide-ranging, and so highly surge is expected in signups for health insurance unregulated, that virtually any company or individual doing der Obamacare and Medicaid. Health insurers will be business will need legal advice and experienced represen- kept very busy handling these new members. tation.” • Despite the ongoing upheaval and uncertainty amid the pandemic, the Affordable Care Act (ACA) aka Oba- Practice Areas

180 Insurance www.chambers-associate.com

Insurance

In a nutshell ecutors or defense attorneys. Some of the main areas Insurance is the practice of hedging against financial include: risk; the practice and its fallout require a lot of legal work. Insurance and reinsurance (even insurers are vulnerable to financial risk and they transfer part of their risk on to Commercial insurance disputes reinsurers) are practiced by a significant number of spe- • Work on claims related to things as varied as proper- cialist law firms and general commercial outfits across ties damaged by flood or fires, oil rigs destroyed by the USA. Insurance can be split into many sub-special- hurricanes, or gold mines nationalized by socialist gov- ties (see below), and firms may offer all or some of these ernments. services. • Work on disputes between insurers and the insured over insurance payouts and what insurance coverage The regulation of insurance companies is split between consists of, or act for the insurer and the insured to- the state and federal level: though most is done among gether in litigation with a third party. states, which are responsible for investigating practices • Assess coverage and the insurer’s liability. and regulating insurance rates, the National Associa- • Interview witnesses to find out how events occurred. tion of Insurance Commissioners (made up of the chief • Value the claim and build up the case for what the cli- regulators of 50 states) provides oversight across the ent feels is an adequate settlement. industry at state level. Among its main responsibilities • Attend court or mediations/arbitrations in order to is to protect consumers and ensure uniform financial come to a settlement. reporting. The Dodd-Frank Act also established the Fed- eral Insurance Office (FIO), an organization within the US Treasury Department which analyzes risk or issues in the Products liability disputes insurance market that could have any serious ramifica- • Assess insurance implications across a range of cases tions for the wider industry and US economy. involving everything from defective pharmaceutical products to food and beverage contaminations. It’s possible to insure pretty much anything against almost any eventuality. Put differently, insurance is taken out to cover risks including human error, accidents and Transactions natural disasters. The most common types of insurance • Broadly similar to the work of a general transactional that lawyers deal with are: insurance against the destruc- lawyer. There are extra rules and regulations govern- tion of tangible assets (e.g. property); insurance against ing insurance transactions which lawyers need to take the loss of intangible assets (e.g. revenue streams); and into account. insurance against mistakes made by professionals. In- surance lawyers work on cases related to property damage, product liability, fraud, insolvency, directors’ and Professional indemnity/errors and omissions officers’ liabilities (D&O), aviation, business interruption, • Represent professionals accused of malpractice and mortgage losses, political events, technology, energy, their insurers. The professions most often affected environment, construction, finance... the list goes on. Dis- include engineers, architects, surveyors, accountants, putes arise between the insured policyholder and the in- brokers, financial advisers and solicitors as well as surer; between the insured plus the insurer and another doctors, dentists, surgeons, etc. party; or between the insurer and the reinsurer. • Investigate a claim, assess its authenticity and look into the coverage of a given insurance policy to deter- Practice Areas Practice Some lawyers specialize in the transactional aspects of mine an insurer’s degree of liability. the insurance industry, advising on tax, regulations, re- • Take advice from experts on professional conduct. structurings, drafting insurance policies, and M&A activ- • Draft letters in response to claims. ity between insurance companies. • Prepare documents for court or out-of-court settlements. • Attend pretrial hearings, case management confer- What lawyers do ences and trials if a case goes to court. Insurance litigation attorneys handle many different • Attend joint-settlement meetings, arbitrations or me- types of insurance-based claims and can be either pros- diations in out-of-court cases.

181 www.chambers-associate.com Insurance

Rankings in Chambers USA • Lawyers may also find themselves working across or specializing in certain sectors including the energy, pharmaceutical, environmental and corporate sectors. Top Ranked Good organizational skills are crucial, because law- Choate Hall & Stewart • Covington & Burling yers are often dealing with a host of claims at various Debevoise & Plimpton different stages. There are often daily deadlines and Duane Morris clients need to be kept constantly informed. Haynes and Boone • Lawyers have to pay special attention to potentially Jenner & Block fraudulent claims or parts of claims. K&L Gates • Insurance cases range from huge international dis- Kirkland & Ellis putes to small local squabbles. Associates might run a Proskauer Rose small case themselves, but only work on a component Reed Smith of a large high-value dispute. Sidley Austin Many firms regularly act for both insurance compa- Simpson Thacher & Bartlett • Wiley Rein nies and insured policyholders. There is a trend toward Willkie Farr & Gallagher firms specializing in either policyholder or insurer work. Highly Recommended Cahill Gordon & Reindel Clifford Chance Current issues Crowell & Moring June 2020 Dykema Gossett PLLC • Under the heading of coronavirus there is almost too Foley & Lardner much to say on the impact on the insurance market. Foley Hoag In brief, commercial and personal claims and reinsur- Gibson, Dunn & Crutcher Greenberg Traurig, PA ance will be contentious topics for several years to Hangley Aronchick Segal Pudlin & Schiller come. Globally, certain states will underwrite part of Latham & Watkins the financial risk. We expect a headcount increase in Mayer Brown this sector while the world settles the financial losses Mintz Levin Cohn Ferris Glovsky and Popeo PC from the pandemic. Morgan, Lewis & Bockius • New risks to insure against are surfacing all the O’Melveny & Myers time: lately, insuring companies against cyberattacks Perkins Coie has gathered steam. However, this type of insurance Pillsbury Winthrop Shaw Pittman sometimes doesn’t protect against some of the worst Sheppard, Mullin, Richter & Hampton effects of data breaches and cyberattacks: declines in Skadden, Arps, Slate, Meagher & Flom & Affiliates Stroock & Stroock & Lavan share price; regulatory compliance problems; and the Sullivan & Cromwell company in question getting a sticky bad rep. Troutman Sanders • Technology is affecting the way that insurance is bought and sold. Digital servicing has increased the For more detail on ranking tiers and locations, visit demand by customers for immediate servicing of www.chambers.com their needs, with young people in particular expecting instantaneous communication from insurers when Practice Areas they’re making a claim. • New technologies such as autonomous vehicles also Realities of the job present novel terrain for insurers, as questions will • Insurance is a complex and technical area, and insur- arise over whether liability lies with the driver or manu- ance policies are not the lightest reading material facturer. you’ll ever come across. • In 2019, Google won a landmark ruling in a dispute • Insurance lawyers are known for their precise and fas- against a French privacy regulator when the EU’s top tidious working style. Insurance policies are grounded court mandated that the firm does not have to ap- heavily in contract law so excellent attention to detail ply the ‘right to be forgotten’ globally, as is set out in and verbal reasoning skills are vital. GDPR. The ruling relaxes pressure on insurers operat- • Insurance cuts across virtually every aspect of life and ing in the US market. legal practice so insurance attorneys can find them- • Reinsurer Munich Re predicts that the ongoing trend selves working frequently with other departments and of the insurance industry growing more slowly than practice groups. the economy as a whole will continue going into 2020. Emerging Asian markets are the fastest growth region

182 Insurance www.chambers-associate.com

for insurance, helping in part to alleviate issues caused • The Insurance Information Institute (or III) determined by the bleak state of the economy. that US insurance industry net premiums reached a • The increasing frequency of natural disasters poses a whopping $1.22 trillion total in 2018. Within that, prop- potentially enormous challenge for insurers in the fu- erty/casualty premiums written totaled $618 billion ture as they often lead to huge losses. For example, es- (51%), in comparison to life/annuity premiums totaling timates by insurance firm Swiss Re put the insurance $600.6 billion (49%). losses from Hurricanes Harvey, Irma and Maria at $92 billion, equivalent to 0.5% of the United States’ GDP. • Research by accounting giant Deloitte shows that the failure of companies to identify and reduce hard and soft insurance fraud within their companies costs the industry $80 billion annually. Practice Areas Practice

183 www.chambers-associate.com Intellectual property – Finnegan

Intellectual property – Finnegan

We learn from the experts at Finnegan about the fascinating, brainy world of intellectual property.

Chambers Associate: How would you define intellec- CA: What does Finnegan’s IP client base look like? tual property? CK: Finnegan has an international client base. We have Chiaki Kobayashi, associate: Intellectual property is a substantial client base in Asia, including Japan, China intangible property resulting from human creativity. Pat- and Korea, as well as in Europe. As a result, we have of- ents, copyrights, trademarks and trade secrets are all fices in Tokyo, Shanghai, Taiwan, Seoul and London. exemplary forms of IP. With respect to PTAB practice, I understand that Finne- gan handles both patent owners and petitioners almost Lulu Wang, associate: To me, intellectual property is evenly. With respect to ANDA/Hatch-Waxman litigation about discovery and cutting-edge science, and as IP at- practice, Finnegan exclusively represents patent owners torneys we have the privilege of being at the cusp of in- and brand pharmaceutical companies. novation with our clients. CA: How important is having a technical/scientific Anand Sharma, partner: It’s like the air we breathe. You background to your work? can’t always see it, but it’s there. It’s in the copyrights that protect the source code in our most used apps. It’s in the AS: My practice focuses on the patent side of IP. We work trademarks that we’ve become so accustomed to using on a day-to-day basis with some of the most cutting-edge that we no longer realize that those products themselves technology in the world. As advocates, whether it be the did not exist just years ago. And it’s in the patented tech- Patent Office, a courthouse, or a boardroom meeting, nology that continues to grow at a rapid pace, like the we need to be able to explain the complexities of these self-driving car or the artificial intelligence that writes technologies, as it relates to the law, in a manner under- masterpiece novels. standable to all. That requires experience and expertise in not only the law, but also the technology. The ability to CA: Broadly, what does Finnegan’s IP practice do and first understand and grasp the science, and then distill it cover? and apply it to the law, is critical in this regard. And that speaks to the importance of having a technical/scientific Charles Collins-Chase, partner: Finnegan has attorneys background. with just about every kind of technical background im- aginable, and we leverage that expertise to serve clients CCC: Having a strong technical background is critical to in nearly every industry. We work in every major area of our work. Our attorneys were scientists and engineers IP. We handle all types of patent matters, including liti- before becoming lawyers, including many who are PhDs, Practice Areas gation, Federal Circuit appeals, prosecution, PTAB trials, and we use that training to become experts in the tech- client counseling and due diligence, and portfolio man- nology at issue in our cases. I can think of countless in- agement and monetization. We have a strong trade se- stances where having a strong grasp of the underlying cret practice and have handled several cases under the science in a case has helped us generate better legal ar- new Defend Trade Secrets Act (DTSA). Finnegan is also guments. A scientific background can also be vital when top tier in trademark litigation and prosecution, false ad- briefing complex technical issues because it helps us vertising, and copyright work. present those issues clearly to judges and juries.

LW: Finnegan is unique in that our practice groups are LW: I joined Finnegan because the firm values science defined by technical subject matter, e.g. biotechnology, and scientists. My PhD allowed me to hit the ground mechanical engineering, etc. Within each practice area, running on day one and contribute scientifically as I de- attorneys have the flexibility to take on litigation and veloped my legal skills. Because Finnegan’s practice transactional projects, and many attorneys choose to groups are organized by technical subject matter, I am maintain a mixed practice. Each informs the other in in- able to maintain a mixed practice in the biotechnology/ valuable ways. pharmaceutical practice group, comprising litigation and

184 Intellectual property – Finnegan www.chambers-associate.com

non-litigation matters like counseling, prosecution, and brief about a complex legal issue. That mix of technol- post-grant proceedings. ogy and law keeps things interesting. I don’t have a lot of “lows” to point to – the general rigors of being an at- CA: What work do associates do? torney, and particularly a litigator, are challenging but also exciting. CCC: At Finnegan, our associates get great opportunities to do high-level work, such as taking depositions, writing CA: What are the latest trends and developments in briefs and motions, and taking witnesses at trial. the IP sector?

CK: Sometimes it is a matter of taking the initiative to do CCC: One overarching trend is that the IP landscape is certain things. There is a ton of writing involved in any becoming more uncertain. From a business standpoint, practice of IP, and frequently associates draft for review. companies usually prefer predictability, and many are With respect to litigation, associates conduct discovery, finding it challenging to navigate the frequent shifts in take/defend depositions, and some deliver oral argu- the law in areas such as patent eligibility. My goal is to ments in court. To be clear, it is not expected that a first- help companies manage that uncertainty and navigate year associate take a deposition from the get-go. Part- the changing legal landscape. I also see a few more spe- ners allow associates to do things when the partner and cific trends in the sectors where I do a lot of work. One is the associate both feel comfortable. the rise of joint ventures and other collaborations, including between industry competitors. JVs are a great way CA: What kind of work do partners do? to spread risk and costs, but also include some IP risks that companies need to anticipate and manage. Another CK: There isn’t a concrete line between what partners do trend is the use of artificial intelligence and machine and what associates do. With respect to written work, in- learning in the biotechnology and pharmaceutical fields, cluding briefs for litigation, responses to Office Actions which has tremendous promise for innovation but also for prosecution, deliverables for opinion work and so on, may raise some interesting IP issues. generally speaking, partners review draft documents that associates write. Otherwise, partners are involved CA: What would you say the future of practicing IP law in various aspects, including leading meet-and-confers looks like? with the other party, delivering oral arguments in court or at the USPTO, taking/defending depositions, and cor- AS: IP is becoming more global as the world become responding with the client. more flat. The disputes that we handle, the clients that we represent, the counsel that we interact with are AS: Finnegan does not believe in hierarchies and this is spread around the world. IP issues and disputes are no especially true when considering opportunities provided longer solely in the US, or solely in Europe. IP application to Finnegan attorneys. If an attorney has the skills neces- filings are on the rise around the world, as are IP litiga- sary for the task and is up to the challenge, an opportu- tions and cross-border transactions. And in the US, the nity will not be held back simply because that attorney is Patent Trial and Appeal Board, the Federal Circuit, and an associate. the US Supreme Court continue to render decisions that shift the IP landscape on procurement, enforcement (in- CA: What are the highs and lows of IP work? fringement, validity, enforceability), and damages.

AS: In my twenty years of practice, while there have been CK: I think the practice won’t change so much, but the many highs, I have been fortunate to experience very few way certain things are done may change due to devel- lows. They typically occur when high-stakes matters are opments in technology. For example, discovery and prior unexpectedly and suddenly resolved. Because our mat- art searches could be conducted easier by using artifi- ters generally follow a schedule (whether in prosecution cial intelligence related technology. But I don’t think that or litigation), we try our best to fill the pipeline to avoid would drastically change the way we currently write Practice Areas Practice the lows. The highs often come from client emergencies, briefs, deliverables for opinion work, or responses to Of- unexpected scheduling changes by the patent office or fice Actions. courts, or an extremely aggressive adversary. CA: Can you tell us a bit about a recent matter you’ve CCC: I love what I do because I get to split my time be- worked on? tween learning about exciting innovations and developing legal arguments about those technologies. In a single CCC: I recently argued a Federal Circuit appeal involv- day, I may find myself analyzing a process flow diagram ing interactive toys that communicate with each other for a chemical plant and then writing a Federal Circuit using acoustic signals. The toys use the signals to influ-

185 Intellectual property – Finnegan www.chambers-associate.com

ence each other’s physical behaviors, which enhances have a deep understanding of the underlying technology the types of play they can perform. We took over the to communicate it effectively. I think IP lawyers should case on appeal following the district court proceedings, also have a natural curiosity for the material they han- where the patents-in-suit had been invalidated under dle. We get to work with clients who invent exciting new §101 at the 12(b)(6) stage. I worked with one associate, technologies, and IP lawyers are at their best when they who helped me brief the appeal and sat second chair at are energized by learning about those innovations. the argument. CA: What opportunities are unique to working at CA: What personal qualities make good IP lawyers? Finnegan?

AS: An excellent advocate, experienced in technol- CK : You get to do what you’d like in terms of the specifi c ogy, that listens with both their ears and their eyes (e.g. technical area, ranging from biotech to electrical, and emotional intelligence), that captures experiences like a the type of work, including prosecution, litigation and sponge, absorbing the good and discarding the bad, and opinion work matters. Getting a wide range of experience that presents their thoughts in a clear and concise man- (from patent prosecution to litigation) is encouraged but ner. not required. And you frequently have the opportunity to do things at early stages of your career – including taking CCC : IP lawyers need to be outstanding communicators. depositions and arguing in court. As an associate at the While all lawyers need to be strong writers and speak- Tokyo offi ce, not only do I get to directly correspond with ers, IP lawyers have the added requirement of needing to Japanese clients, I frequently present in front of poten- communicate complex technical and scientifi c concepts tial and existing clients to discuss IP-related topics at my clearly to judges and juries. That, in turn, requires IP law- own initiative. yers to have strong technical skills because you need to

Authors

Chiaki Kobayashi Lulu Wang Anand Sharma Charles Collins- Associate Associate Partner Chase Partner Practice Areas

186 Intellectual property www.chambers-associate.com

Intellectual property

In a nutshell terrogatories, requests for admission, and document There are four different types of intellectual property: requests seeking more information about the other patents, trademarks, copyright, and trade secrets. Pat- side’s positions. On average, discovery will take three ents are issued by the US Patent and Trademark Office years. (USPTO) to the creators of new inventions or processes. • Engage in the summary judgment motion phase. En- They’re practically a monopoly on the manufacture and gage in a Markman hearing, during which the judge sale of the patented invention, but they only last for 15 interprets the language of the claims, ruling on any years. Trademarks can potentially last forever, but only disagreements between parties on their interpreta- protect the words, symbols or phrases used to distin- tion. Markman hearings can take place anytime before guish the brand or identity of a good or service. the case goes to the jury, but usually occur before trial. • Go to trial, normally in front of a jury. This normally Somewhere in between is copyright, which protects takes between four and ten days. works of authorship such as books, movies, music and • Perform IP due diligence. Review a third party’s IP plays. Copyright is a complicated system of restrictions portfolio prior to your client entering into a transac- on copying, performing and otherwise profiting from tion with them. Assess the strengths and weaknesses protected works, and lasts for the life of the author plus of the portfolio so that the client can understand the 70 years. Finally, trade secret law protects the holders risks of doing business with the rights-holder. of proprietary information from having their information • Draft commercial agreements between owners of IP stolen or disclosed to the public in certain circumstanc- rights and those who want to use the protected inven- es. Think Coke’s secret formula. tion, design or artistic work. The most common agreements will either transfer ownership or grant a license. Companies big and small rely on IP to give them an edge over their competitors, and in 2010 IP-intensive industries directly or indirectly accounted for 40 million US Realities of the job jobs, or 27.7% of the workforce. Clients can include a • In order to become a member of the patent Bar, you tech startup looking to patent the latest gizmo to a film must pass an exam administered by the USPTO, which distributor trying to stop its content from being pirated. requires you to have completed a minimum number of As well as being financially rewarding, IP law also offers technical or scientific courses in college or university. some fascinating ethical questions, including: You don’t actually need to be a member of the patent Bar to appear in federal district court on a patent case. • Do pharmaceutical patents give life sciences compa- Membership of the patent Bar is only necessary for at- nies an incentive to invest in creating life-saving drugs, torneys who want to do patent prosecution work. Paul or do they just keep their prices high? Parker, firm-wide chair of Perkins Coie’s medical de- • Should people named ‘McDonald’ be able to name vice industry sector, affirms that science qualifications their restaurants after themselves? are not a prerequisite for trademark and trade secrets • Is your Happy Potter fanfiction copyright infringement work. fair use or just a cheap knockoff? • Patent owners can file claims in any district court they want; some districts are considered more patent- friendly and are therefore more popular than oth- What lawyers do ers. The most notable of these is the Eastern District • Engage in written correspondence to see if the alleged of Texas, based in Marshall, TX (population 24,000). infringement can be resolved through a license and Critics say its unorthodox rules and conservative jury Practice Areas Practice royalty agreement or other amicable resolution. pool favor patent owners, while its supporters cite the • If not resolved, attorneys representing the rights-hold- court’s efficiency. er file an infringement claim. Defense attorneys then • An IP portfolio can be the most valuable of a business’s respond with a counterclaim stating either that their assets, particularly in the pharmaceutical sector. This client has not infringed or that the IP is invalid and un- means that IP lawyers need to form part of the deal enforceable. team from an early stage. • Engage in discovery. Examine public records held in • Overseas companies and inventors view the USA as a the USPTO that document the correspondence be- prime venue for patent litigation. tween the patent holder and the USPTO. Prepare in-

187 www.chambers-associate.com Intellectual property

Rankings in Chambers USA • As a result of globalization, the current manufacturing and importation process has become enormously complicated and creates considerable challenges for Top Ranked patent owners seeking royalties or compensation at Alston & Bird Baker Botts all levels of the manufacturing and distribution chain. Cooley • Every patent infringement appeal is filed with the US Covington & Burling Court of Appeals for the Federal Circuit. If parties Debevoise & Plimpton don’t like the result there, the only option is to file a Dorsey & Whitney petition for certiorari with the Supreme Court, which Finnegan, Henderson, Farabow, Garrett & Dunner has taken more patent cases in the last decade. Fish & Richardson PC • Patent cases bring great risk to Fortune 500 compa- Foley & Lardner nies, which can incur enormous damages dating back Goodwin up to six years from the filing of the complaint. This Kirkland & Ellis explains the rise of non-practicing entities or patent Latham & Watkins Morrison & Foerster trolls, which buy up portfolios of patents and make Paul, Weiss, Rifkind, Wharton & Garrison their money threatening to sue other businesses for Perkins Coie patent infringement. Faced with such stiff penalties, Sidley Austin and without the resources to fight the case in court, Sterne, Kessler, Goldstein & Fox P.L.L.C. smaller companies and inventors pay the patent trolls Troutman Sanders hefty license fees. Waller • Different types of IP work means differing workloads, WilmerHale explains Professor Tim Holbrook of Emory Univer- sity. “Patent prosecutors tend to work more indepen- Highly Recommended dently, as it’s often just you and the PTO,”he explains. Akin Gump Strauss Hauer & Feld Arnold & Porter “Patent litigation often goes on for years, and requires Choate Hall & Stewart long-term thinking,” he adds, “while trademark litigation Cravath, Swaine & Moore is all about speed. Cases are decided off a preliminary Dechert injunction, so if something’s happening, it’s happening Duane Morris now.” Foley Hoag • IP candidates who can demonstrate that they have Fox Rothschild business expertise will fare well: “I think it’s very help- Gibbons P.C. ful to hire people who have been in industry for a couple Gibson, Dunn & Crutcher of years or more,” says Paul Parker. He also notes: “Un- Greenberg Traurig, PA like in a lot of areas where law is a cost center, in patent Haynes and Boone Irell & Manella prosecution, as opposed to litigation, you are an asset Jenner & Block creator – you create value for companies.” Dale Cend- K&L Gates aliof Kirkland & Ellis remarks that lawyers “must stay Katten nimble because what we think the world is today is likely King & Spalding to not be the case in ten years.” Mayer Brown • Good communication skills are a must, particularly in Morgan, Lewis & Bockius transactional IP and IP litigation. Lawyers need to be Practice Areas O’Melveny & Myers able to simplify and explain complex technical matters Orrick, Herrington & Sutcliffe to lay judges, juries and clients.: Patterson Belknap Webb & Tyler What do our expert lawyers enjoy most about their Paul Hastings • Pillsbury Winthrop Shaw Pittman profession? Cendali says: “I like the theater of trials Proskauer Rose and depositions and court hearings,” adding: “I really Ropes & Gray like working with my team.” Parker enthuses: “Being in Skadden, Arps, Slate, Meagher & Flom & Affiliates IP law is a continual learning process about science and Thompson & Knight the world around us.” Venable • Trent Webb of Shook, Hardy & Bacon told us: “Being Vinson & Elkins competitive and having a drive to win is very important, Weil, Gotshal & Manges because every case involves trying to beat the other side. Wilson Sonsini Goodrich & Rosati Creativity is also essential; we strive to find unique ap- Winston & Strawn proaches to solving problems. You also need to be able For more detail on ranking tiers and locations, visit to simplify and explain very complicated technical issues www.chambers.com

188 Intellectual property www.chambers-associate.com

to lay juries. Communicating effectively to your audience likely Hasbro has trademarked the smell as a publicity is extremely important.” stunt – it’s unlikely any challenges to the smell would • What challenges might an associate face? Parker says: make it to court as aromas are so subjective and hard “For mid-level associates there is a period of time when to measure that it’d be not worth the company’s time to there seems to be a lot of basic preparation and pros- prove infringement. ecution. It’s a threshold you have to get through before • In other ‘patent-eligible subject matter’ news, in 2019 operating at a much more strategic level with clients.” the US Court of Appeals for the Federal Circuit re- • Cendali advises budding IP lawyers “to dig a little cently told Athena Diagnostics that their new method deeper to figure out the nature of the IP practice at dif- of diagnosing neurological disorders through using ferent firms. What is it they do? How many associates are radioactive compounds was unpatentable as they has working in that group? What are the potential opportuni- simply discovered a ‘natural law.’ ties to make partner?” • The United States Postal Service (USPS) argued in 2019 that it could be legally seen as a ‘person,’ so could be covered by a specific review before the PTAB. The Current issues Supreme Court voted that the USPS is not a person. June 2020 • Until very recently, various courts had differing views • R&D budgets are what foots the bill for a lot of IP work, on whether a copyright claimant must already have and in a recession R&D is one of the first areas to feel registered the copyright before claiming infringement. the squeeze as companies become less ambitious and Some held that the claimant needs only file the paper- expansionist, and concentrate on stability and survival. work and pay the fees before claiming infringement, As a result we’ve seen a few firms respond by slightly while others made claimants wait until the copyright decreasing junior IP headcount numbers and redirect- was fully registered before claiming infringement. Jus- ing them towards general litigation and bankruptcy. tice Ginsburg helped clear this whole thing up in 2019: • There is an ongoing debate about ‘patent-eligible sub- the Supreme Court has decreed that all copyright ject matter.’ The 1980s days of patents for ‘anything infringement claimants must have a fully registered under the sun that is made by man’ are long gone, with copyright before filing for infringement. (Though don’t patents becoming increasingly difficult to obtain. An worry, they can still litigate on infringements that hap- ongoing case, Google vs. Oracle America, concerns pened before the filing.) whether Google using Oracle’s application program- • ‘Prior art’ is the term used to describe an invention or ming interface (API) comes under ‘fair use.’ The Su- patented item that’s already known to the public in preme Court granted Google a cert petition (where a any form. This is often used as evidence of the date of party files a case to the Supreme Court to examine originality. In 2019, the Supreme Court decided that if a decision from a lower court) in November 2019. At an inventor sells an invention to only one person, and some point in 2020, we may see a verdict on this his- that person is contractually bound to secrecy of the toric case. intention, that still counts as prior art. • In 2018, Hasbro trademarked the smell of their famous • There’s no getting away from blockchain as it gathers play putty Play-Doh. To be filed with the USPTO, gov- speed alongside the rise of cryptocurrencies. Experts ernment officials had to conduct smell tests in order to speculate that the technology could provide a means accurately describe the smell. There are only a hand- for content creators to ensure they’re compensated ful of smell patents as you can’t patent something if for their intellectual property, relevant to industries its main purpose is to smell (e.g. you can’t patent the ranging from music to pharmaceuticals. smell of Chanel No.5, only its chemical makeup). It’s Practice Areas Practice

189 www.chambers-associate.com International arbitration

International arbitration

In a nutshell and defendants in such cases, though they must be care- International arbitration addresses any case or potential ful about conflicts. dispute between parties – usually located in two different countries – and is the most common form of alternative The disputes are often considered under a foreign appli- dispute resolution (ADR). “At the most basic level, inter- cable law and resolved under the arbitration rules of the national arbitration attorneys are international litigators in International Chamber of Commerce (ICC), the Interna- a transnational justice system,” says Donald Donovan of tional Centre for Dispute Resolution of the American Ar- Debevoise & Plimpton. “It’s a system that’s validated by bitration Association (ICDR), the London Court of Interna- both national and international law, but not run directly by tional Arbitration (LCIA), the World Bank’s International any given state.” Arbitrations often arise from clauses in- Centre for Settlement of Investment Disputes (ICSID), or cluded by companies in their commercial contracts with the United Nations Commission on International Trade one another. This means that, if a dispute arises between Law (UNCITRAL). The nature of the dispute largely deter- them, they are obliged to arbitrate their dispute rather mines the relevance of each set of rules. Investor-state than pursue traditional litigation. disputes, for example, are usually arbitrated under UNCI- TRAL or ICSID, while the LCIA and ICC rules are suitable Arbitration provides a binding solution to the dispute by for virtually all types of arbitration – though the latter is way of an arbitral ‘award.’ The award can be enforced more appropriate for commercial disputes. internationally through the provisions of the 1958 New York Convention on the Recognition and Enforcement of Arbitral Awards, which more than 140 states have rati- What lawyers do fied. “Private parties often prefer international arbitration • Receive instructions from the client, who thinks, for because it provides a neutral and relatively confidential fo- example, that their contract has been breached or rum, specialist arbitrators and greater ease of enforcement that their rights under an applicable investment treaty of the award in multiple jurisdictions. The New York Con- have been infringed. vention is unique in that there is no equivalent international • Review the contract or treaty, solicit and review rele- treaty in force around the globe to ensure the international vant documentation, and speak to potential witnesses. currency and enforcement of domestic court judgments,” • Provide the client with a memo on the merits of the explains David Lindsey, partner and co-founder of arbi- case. This may involve working with local counsel in tration boutique Chaffetz Lindsey in New York. the relevant jurisdiction. • If a client wishes to proceed, draft the necessary initia- The types of cases heard in international arbitration are tion papers – usually a ‘Request for Arbitration’ in ac- typically cross-border commercial disputes that occur cordance with the applicable arbitration rules, such as in situations like joint ventures or corporate transactions ICDR, ICC or ICSID – and submit to the relevant arbitral (including M&A). “The types of disputes run the gamut, institution. but they are all really linked to investment and transac- • The case is then registered and the request is com- tions outside the home jurisdiction of the claimant,” Nigel municated to the respondent, usually by the arbitral Practice Areas Blackaby of Freshfields Bruckhaus Deringer says. Dis- institution. The respondent answers, possibly with an putes commonly originate in the oil and gas, telecom, pri- objection to the jurisdiction and with a response to the vatized public utilities and construction industries. case’s merits. They name an arbitrator. • In order to establish the tribunal, each party proposes One specific type of international arbitration is ‘invest- an impartial and independent ‘party-nominated’ arbi- ment arbitration,’ where a claim is brought by a foreign trator. The party-nominated arbitrators then usually investor directly against the host state of its investment. seek to agree on a ‘president’ or ‘chair’ of the tribunal, This arises from the likes of multinational ventures, such failing which, the president/chair will be nominated by as energy projects, and can be instigated in two ways: in- the institution. Once constituted, the tribunal will investors and host states either consent in contracts to use vite parties to the first procedural hearing at the (usu- international arbitration to resolve disputes, or investors ally neutral) seat of hearing (often a jurisdiction with make claims under bilateral (or multilateral) investment favorable arbitration laws and culture such as New treaties (BITs). BigLaw firms – as well as specialist bou- York, London, Paris, Geneva or Singapore), where the tique firms in some instances – represent both claimants calendar and procedural order for the next steps will be established.

190 International arbitration www.chambers-associate.com

Rankings in Chambers USA Realities of the job • “The international context is fascinating because, regardless of whether it’s a commercial or investor-state Top Ranked arbitration, you’re always experiencing different cul- Debevoise & Plimpton Freshfields Bruckhaus Deringer tures, countries, languages and personalities. It really King & Spalding is such a wonderful dynamic and mix,” says Carolyn White & Case Lamm of White & Case. • “You can assist yourself greatly by having a real com- Highly Recommended mand of more than one language,” Donovan explains. Arnold & Porter “English is of course important, but having a command of Baker Botts other languages as well really helps.” Spanish, Chinese Cleary Gottlieb Steen & Hamilton and Russian are languages in demand. Portuguese is Covington & Burling also increasingly valuable for international arbitrators, Curtis, Mallet-Prevost, Colt & Mosle in conjunction with the growth of the Brazilian market. Dechert Foley Hoag • “International arbitration isn’t entirely different from Jenner & Block courtroom advocacy,” according to Lamm. Compared Reed Smith to US litigation, however, international arbitration typi- Shearman & Sterling cally relies more on written, instead of oral, advocacy Sidley Austin and on contemporaneous documents, rather than on Skadden, Arps, Slate, Meagher & Flom & Affiliates witness testimony from parties. In final hearings, for Vinson & Elkins example, written witness statements often take the WilmerHale place of oral direct testimony. “In many ways the skills that make you successful in For more detail on ranking tiers and locations, visit • www.chambers.com international arbitration are no different from the skills that make you successful in litigation,” Joe Profaizer of Paul Hastings tells us. Fried Frank arbitration prac- • In commercial arbitration, there is a period for ex- tice founder Elliot Polebaum concurs, elaborating: changing documentary evidence, during which each “It’s a good idea to have a grounding in disputes more side will produce the documents upon which it intends generally. Working in the litigation department of a law to rely. This does not typically include ‘US-style’ dis- firm is a good place to start, before getting specialized. covery, but a far more limited disclosure process. There are opportunities to become enmeshed in the fac- • The next steps usually include a very detailed pres- tual development of a case, learning and handling the entation of the facts and evidence by the claimant disclosure process, including the deposition process in (including written witness/expert statements and all US litigations, and managing the documentation.” relevant documentation). This is called a ‘Memorial’– it • The job involves a lot of travel to identify relevant doc- may also be included in a pre-hearing brief shortly be- uments and interview witnesses. Depending on the fore the hearing on the merits. circumstances, associates may also travel. • Defense attorneys submit a ‘Defense Memorial,’ or re- • It’s important for international arbitration lawyers to sponse brief with a similar presentation. build up their knowledge of economic and financial • There will often be a further round of ‘Reply’ and ‘Re- issues, as these form an important component of the joinder’ memorials or briefs. work. • Final hearing takes place, where witnesses are ques- • “Currently there is no overarching set of rules to account tioned and cross-examined before the tribunal, and for all the various national backgrounds that lawyers in oral argument is made. The written witness state- an international proceeding come from, so if you have ments filed with the Memorials often take the place of lawyers from different legal systems they may not be direct testimony at the hearing. conducting themselves in the same way,” Lamm tells us. • Submit final, post-hearing briefs. In complex cases, Despite this, the differences between European, US Practice Areas Practice these can be lengthy. and Asian practices, and between civil law and com- • Tribunal determines award, which must be ‘reasoned’ mon law, are not as great as they once were. Some (i.e. the tribunal’s reasoning for the award must be set say a more universal practice is developing; the Inter- out), in writing, and signed by the members of the tri- national Bar Association’s now widely used evidence bunal. With a three-person tribunal, a majority deter- rules are an example of this. mines the award. • In commercial arbitration, demands for documents from the other side are allowed, but not as much as in the discovery phases of US litigation. Depositions are rarely allowed, unless US parties are involved and the

191 www.chambers-associate.com International arbitration

arbitration clause itself calls for them. (See the afore- tion may not continue to be the alternative choice for mentioned IBA evidence rules for a good summary.) resolving matters.” Recent developments in mediation • International arbitration has provided an effective plat- and litigation involving the cross-border enforcement form for female practitioners to excel, which is demon- of judgments and settlement agreements reinforce strated by organizations such as ArbitralWomen. this position. • Lindsey feels “participants in the international arbitra- • Class arbitrations have been around in the USA for tion Bar share a mutual respect and camaraderie that I some time but, thanks to some companies prohibiting have not witnessed in other areas of legal practice.” customers from pursuing class arbitrations, these ac- • International arbitration is generally a difficult profes- tions are on the decline. Outside the USA it’s a differ- sion to enter, and so it’s typical for juniors to develop ent story; although still infrequent, class arbitrations their skills as trial lawyers first. “The bottom line is you are increasingly springing up and commentators ex- must learn advocacy – how to present on your feet with pect this to continue in the coming years. care, thoroughness and confidence. You also need to • Though you might think the prospect of Brexit would know whether you love to do that, because some people have a big impact on the future of international arbi- just don’t excel in that kind of situation,” Lamm informs tration in London, Mark McNeill from Quinn Emanuel us. Urquhart & Sullivan suggests that the city “is in many ways the dispute resolution capital of the world, and it Current issues won’t lose any of its major strengths post-Brexit. It will June 2020 still attract many of the most important commercial cas- • New York, London, Paris and Geneva have tradition- es, and what makes people choose it as an arbitration ally been favored as the arbitrators’ venue of choice, seat won’t change overnight.” The UK, legally, will still though the Asian arbitration market is growing. Singa- need to subscribe to EU laws until the end of the Brexit pore and Hong Kong are popular arbitration venues at transition in 2020; even after that, UK judgments will present. The sociopolitical tension in Hong Kong over be enforced by the EU so long as those proceedings the last year may push more cases into Singapore; predate the end of the transition period. While there the New Delhi International Arbitration Centre aims to is uncertainty about the enforceability of judgments make India another arbitration hub. after that, the trend is that London is increasingly be- • China’s Belt & Road Initiative (which could be the big- coming a seat for arbitration in international commer- gest construction and investment program ever) has cial contracts. given rise to a number of disputes that have resulted • Alternative funding, such as third party funding, will in international arbitration. continue to finance arbitrations. Third party financing • Arbitral decisions have been increasingly challenged sees external investors stump up the cash for com- over the last ten years; while most of these failed to panies to pursue arbitrations, on condition the inves- overturn initial rulings, the last five years have seen tors pocket a proportion of any settlement awarded. a few succeed. In November 2018 Russia declared it Despite some hostility to arrangements in certain ar- wasn’t accepting a ruling that mandated it pay $1.3 eas, some jurisdictions are warming up to the method; billion in compensation to a Ukrainian state-controlled Hong Kong is set to review its restrictions on third bank following the invasion of Crimea. party funding. • Jenner & Block’s Anton Valukas tells us: “Arbitration • The LCIA and ICSID are both updating their rules, has become as complex as civil litigation. It’s not unusual which will no doubt play a role in judgments in subse- for arbitrations to involve extensive discovery, motion quent years. Practice Areas practice and protracted resolutions. As a result, arbitra-

192 International trade – Hogan Lovells www.chambers-associate.com

International trade – Hogan Lovells

Like it or not, borders exist. For trade to go on, the work of international trade lawyers is crucial. Five experts from the highly international Hogan Lovells oversee the free movement of knowledge to you, the lawyers of tomorrow.

Chambers Associate: How would you define an inter- that govern trade relationships between countries. We national trade practice? deal with domestic law and regulations administered by US government agencies, but we also deal with interna- Deen Kaplan, partner: First and foremost, as a regula- tional law that is enforced by various government bodies tory practice, the lawyers who work in this area interact overseas. International trade law includes a wide variety extensively with governments around the world. Doing of issues such as export control, economic sanctions, this allows us to help our clients understand the ways customs and imports issues, immigration matters, trade that various governments regulate and address com- agreement negotiations and subsidy cases. pliance and enforcement matters. In international trade law matters, the relevant government is effectively the Maria Arboleda, associate: It’s a very wide area of regu- arbiter in this sense. Our day-to-day work focuses on a latory law that centers on trade between different coun- combination of trade control matters (sanctions, export tries and parties, including the likes of governments, controls, etc.) , trade litigation (countervailing duties, an- companies and other parties such as coalitions. At Hogan tidumping cases, WTO disputes, etc.) and more recently, Lovells, we have two primary subgroup focuses: trade trade negotiations. disputes and policy & trade compliance.

Beth Peters, partner: We essentially deal with the regu- CA: How would you describe your role as a senior as- lations and disputes that arise in light of the cross-bor- sociate within the international trade practice? der movement of people, money, items and technology DW: As a senior associate, I work on several different pro- services. The regulatory aspect is really at the nexus of jects. On the compliance side, we’re constantly juggling all of this movement. a number of matters, working with clients directly and helping with their compliance concerns. We definitely We also advise companies, associations and large US have a lot of responsibility when it comes to supervising universities on the intersection of politics and political the junior associates and paralegals staffed on matters. influences, and how they affect regulatory matters. On As a result, there is an element of project management a daily basis, this involves many interesting matters, as within the role. there is a level of unpredictability that needs to be considered as companies plan their businesses and investments. “We’re constantly juggling between direct responsibility to our clients and the management of the broader “We also deal with international law international trade practice across the that is enforced by various government firm.” bodies overseas.” Practice Areas Practice AF: I would say associates at all levels have a great deal Deborah Wei, senior associate: Our group covers a va- of responsibility and are directly involved with client riety of areas, including various material goods and soft- communications and legal analysis. Senior associates ware/technology that exits the US. We also cover the engage clients directly, by leading client calls and meet- control of things coming into the US. ings, but we also are involved with the training of more junior associates. Anne Fisher, senior associate: It involves becoming acquainted with and advising on the rules and customs

193 www.chambers-associate.com International trade – Hogan Lovells

CA: How would you describe your role as a partner satellite manufacturers on export control issues related within this area? to satellite construction and launch operations, which in- BP: As a co-director of the practice, an important part cluded the approval of agreements and licenses. of my role is shaping the practice’s ongoing strategy and business development activities. CA: What are the highs and lows of working in this practice area? DK: We work with the co-director in Europe as well, so DK: The ‘high’ is really simple: it’s the ability to help cli- we’re constantly juggling between direct responsibility ents with issues tied to either products or people in a to our clients and the management of the broader in- commercially significant way. We want to help these ternational trade practice across the firm. As the news products and people cross borders in a good way – a way headlines these days make clear, we are a very active that enables the employment of people throughout the practice group! world and the facilitation of international trade. Another high comes from working on compliance matters that CA:Describe an interesting matter you’ve worked on. involve some sort of national security matter; there’s an DK: One of our most interesting matters occurred last enormous amount of satisfaction that comes from being year; it involved the renegotiation of major trade agree- able to help protect our clients’ assets and security. ments across the world. Hogan Lovells has had a direct and substantial role in assisting clients with the renego- In terms of challenges – speaking only for myself – it is tiation of NAFTA (the North American Free Trade Agree- obviously a fairly tense time in the world of international ment). We’ve also worked on discussions with Europe trade at the moment. We are hopeful that we can con- and we’ve undertaken some good work with respect to tribute to building bridges that can provide a win-win China, South Korea and other countries in Asia. We are situation for all parties, but this has been challenging, as fortunate to have a strong global position with more than you’ve no doubt seen in the press. There has been a lot 40 offices, so we can do this type of multinational work of tension over the past few years, but it is our job to ad- due to our size and global profile. dress these obstacles and the associated tension. Trade flourishes on predictability, but in recent times there has DW: I’m helping with an international compliance mat- been an unusual degree of uncertainty. ter where I’ve traveled to six different countries in six months. Each situation that we deal with is based on MA: One of the highs of working in this area comes when specific circumstances that require a lot of analysis you wake up in the morning, hear about a current issue and good judgment. International trade is a constantly in the news, and know that you’re working on it. At this changing landscape. For example, there have been a lot point in history, many things are happening; it is a very of changes with regards to sanctions on Cuba; we have interesting time to be working in international trade. It is therefore had to thoroughly track how the situation has exhilarating to be a part of these policy issues and to see evolved and the changes that have occurred. We can the results that our input as a firm can bring. The lows are subsequently advise our clients on how to react to the pretty much dependent on intense work periods and the situation. We have to plan a suitable approach whenever handling of confidential information. there is political upheaval on either side of the equation.

MA: I’ve been working on the softwood lumber dispute, “We have to plan a suitable approach which is the biggest trade litigation between the US and Practice Areas whenever there is political upheaval on Canada. The dispute has revolved around US trade inves- either side of the equation.” tigations of imports of Canadian softwood lumber, which is used extensively for many US housing and construction projects. We represent the government province of CA: How would you say the trade war between the US Ontario, Canada. At the moment there are two ongoing and China is affecting international trade matters? investigations that cover countervailing duties and anti- DK: It is one of the most challenging matters we’ve dealt dumping issues. My work has involved US, NAFTA and with in many years. And it has been challenging on all WTO litigation proceedings. sides of the dispute. For example, it has affected our US agriculture clients, the solar industry and many, many AF: We also work with clients in the technology, phar- other sectors. maceutical, aerospace and defense industries. One recent matter required us to prepare a classification rul- We are hopeful that the two countries will agree on a ing system for a medical device company. This revolved framework to manage their trade opportunities and dif- around an FDA approval of a medical device that as- ferences, and have been working with our clients to help sisted breathing. In another recent matter we advised US facilitate that. The US and China are two of the world’s

194 International trade – Hogan Lovells www.chambers-associate.com

most important economies, and the negotiators need MA: First, Hogan Lovells has many, many long-standing to find a win-win solution. Hogan Lovells has deep rela- relationships within the government regulatory space, tionships in both the US and China, and our agricultural, and that really helps. In our practice, we have expertise technology and other clients are eager to deepen trade that includes former general counsels who used to work and move past the dispute. We expect a continuation in government agencies, ambassadors and many other of the high volume of US-China work at HL in this area officials who can help us navigate how governments han- given the clients we represent. They will be seeking as- dle these laws and regulations. sistance as they navigate any new agreement. In addition, our international trade team has a very hori- BP: We have offices in over 40 locations, including in zontal way of working, which means that we really do China. We have been helping companies and universities work as a team. We have access to various channels of to understand the legal issues involved, so they can de- communication, as well as plenty of facetime that in- cide how to address these export and trade risks. We are cludes weekly meetings where we all sit down and dis- hopeful that both countries will look at common ground cuss new developments. From an associate standpoint and get the situation back on track. this is very valuable, as it makes the practice very open and provides opportunities to work on diverse issues in CA: How can students and junior associates keep up the trade law spectrum. to date with the market and industry trends? MA: Read the news and trade publications. I literally AF: What’s unique is that we have more than 45 offices wake up every day and read what the latest is from the worldwide that handle large, complex trade matters; we White House and many other sources. This then impacts address issues across multiple jurisdictions, from offices my work for the rest of the day. such as Brussels, Moscow, Beijing and DC. This allows us to navigate global trade control regulations and ad- DK: In the past, it used to be hard to motivate students vise our clients accordingly. Many of our attorneys have to keep up with the market, but now trade is on the front also held significant leadership positions within US trade pages of many newspapers and online sources, in ad- agencies, which allows us to maintain strong and re- dition to the specialized journals we typically rely on. spectful relationships with regulators. There’ll often be at least two or three articles of interest each day. Trade will likely be at the forefront of the news What also makes Hogan Lovells stand out is our wide for the foreseeable future. range of expertise on a range of issues. These include export and import controls, foreign direct investment, economic sanctions, trade agreement sanctions, anti- “When I have a customs question, I dumping subsidy cases and the ability to address com- know who I can call, or I can walk plex international trade matters worldwide. down the hall to their office.” “You have to be very open-minded AF: The trick is to read multiple specialized trade pub- about other cultures.” lications daily; attend international trade conferences; and visit the Hogan Lovells website regularly, which has DW: The breadth of our practice makes us stand out. news alerts. We have such a big team, which covers elements like immigration and some cybersecurity matters. We share CA: Where can new associates expect to be in five a breadth of knowledge across the group; when I have years? a customs question, I know who I can call, or I can walk DK: The sky is the limit, particularly now. Over the past down the hall to their office. It’s great to be able to draw year we have sent associates to a dozen countries in on these multiple resources in one team and to see how leadership roles to assist on major matters. We ask asso- the group works together across borders. Practice Areas Practice ciates what they’ve done, where they’ve been and what kind of responsibilities they’ve had. Excellence is the CA: What is your advice for students interested in this filter, not level of seniority. We believe that if you’ve got area? the chance to allow someone to lead, let someone prove BP: Try a project as a summer at a firm that has an inter- themselves. national trade practice or try to gain experience at a government agency that focuses on trade work. On a more CA: What is unique about Hogan Lovells’ practice in academic level, try researching and writing an article on this area? international trade during law school. I would also highly

195 International trade – Hogan Lovells www.chambers-associate.com

recommend starting to network with people who are in- CA: What personal qualities are benefi cial to have as volved in this area both in the US and beyond. an international trade lawyer? MA: You have to be very open-minded about other cul- DK: I’d say two things: fi rst, take a class in international tures. As a Colombian national and trade lawyer, I know trade law during law school – it is different from what that it’s essential to be very sensitive when navigating much of you will study in law school. Second, if you have other cultures and understanding your clients’ needs. an international background or skills in multiple languag- For example, I’ve worked with clients in China, Ukraine, es, this is a great and positive differentiator which can Brazil and Canada, and each culture has different nu- help you in this area. International trade relationships ances. With this global spectrum of clients, you need to are easier to facilitate if those helping to secure them be able to accommodate everyone in relation to different can speak the languages and know the cultures of the issues – and I love that! various parties involved. In the bigger picture, the goal is to move people and products across borders, while also DW: Being a good listener is very important: you need to obeying all the regulations and rules associated with listen to your client’s specifi c needs. You need to under- them. stand how you can take a template of what a good compliance program is, and then balance that with a particular client situation and a particular risk profi le. Laws don’t prescribe specifi c ways to set up compliance programs and manage clients. That’s why it is very important to understand the client’s business and also to have a curious mind – always be aware and actively looking to follow up on changes happening in this space.

Authors

Deen Kaplan Beth Peters Deborah Wei Anne Fisher Maria Arboleda Partner Partner Senior Associate Senior Associate Associate Practice Areas

196 Labor and employment www.chambers-associate.com

Labor and employment

In a nutshell what we are trying to advise companies on.” There is much, Labor and employment law governs the workplace and much more to this specialization, however. the relationships between employers and employees; between managers and unions; and between employers and government. BigLaw firms tend to represent em- What lawyers do ployers. Employment litigation • Receive notice of a charge or complaint filed with the Employment work involves both litigation and coun- EEOC or DOL, respectively. seling. The former tackles claims of discrimination, • Advise the client on how to respond to the EEOC, DOL including age, disability, national origin, race, religion, or other government investigations. whistle-blower/retaliation, sex and sexual harassment. • Negotiate with the agencies, work with them in inves- Such claims are brought by individuals or administra- tigations, and try to come to settlement in appropriate tive agencies like the US Equal Employment Opportunity cases. Commission (EEOC). Other common disputes concern • If a class action, oppose class certification. unpaid overtime (‘wage and hour’ claims) under the Fair • If no settlement can be reached, begin discovery – pa- Labor Standards Act (FLSA), and claims relating to the per and electronic. Settlement can occur at any stage Family and Medical Leave Act (FMLA), both of which may of a case. be filed with the US Department of Labor (DOL). • Provided the case is not settled, standard litigation will commence. Lawyers who offer employment counseling advise on compliance with various employment laws. This involves advising on clients’ wholesale employment policies and Employment counseling practices, as well as on ‘difficult situations,’ be they sex- • Review and draft employment contracts and policy ual harassment complaints or reductions in force. They documents. will often advise on the employment aspects of business • Advise the client on the steps to take when problems transactions like M&A or restructurings. Attorneys will arise. either provide both litigation and counseling advice, or • Keep the client abreast of changes to laws and regula- specialize in one discipline. tions, often by way of newsletters or seminars. • Advise on the employment implications of business BigLaw labor lawyers commonly advise management on transactions. union matters governed by the National Labor Relations • Focus on minimizing risk for the client, by instilling a Act (NLRA), which is administered by the National Labor proactive and preventive approach. Relations Board (NLRB). They have expertise in collective bargaining, union and strike avoidance, and strike breaking. They will also advise on Occupational Safety and Labor relations Health Act (OSHA) matters, which the DOL (via the Oc- • Act as a liaison between management and unions. cupational Safety and Health Administration) enforces. • Lead negotiations between the different sides. Labor attorneys may also engage in litigation of NLRA • Litigate cases before the NLRB and in federal courts. and OSHA disputes.

Employee Benefits, Executive Compensation & ERISA Realities of the job Many firms have a distinct practice focused on execu- • Only a small percentage of cases filed in the courts Practice Areas Practice tive compensation, employee benefits and ERISA work. are putative class actions. Most are wage and hour or For the uninitiated, ERISA is the Employee Retirement discrimination cases. Income Security Act of 1974 – the federal statutory • Cases are heard in state and federal courts, as well as framework that governs the administration of employee before administrative and regulatory boards. benefit plans and the rights of the beneficiaries. Kyoko • Many labor and employment laws will sound familiar: Takahashi Lin, partner at Davis Polk, tells us: “The work the Americans with Disabilities Act, the Civil Rights we do is really about people: how do you motivate them? Act of 1964, the Equal Pay Act, the Age Discrimination How do you get them to be incentivized and work hard in Employment Act, and the National Labor Relations and do the right thing and treat employees well? That is Act.

197 www.chambers-associate.com Labor and employment

Rankings in Chambers USA • Most charges are found to have ‘no reasonable cause’ and many others will be settled before litigation. • The best labor lawyers will have good people skills, be- Top Ranked cause they will be interacting with both management Alston & Bird Epstein Becker & Green PC and unions. The most successful ones will be able Gibbons P.C. to convince both management and unions that they Gibson, Dunn & Crutcher have common goals. According to Thomas Linthorst, Morgan, Lewis & Bockius a partner in Morgan Lewis’s labor and employment O’Melveny & Myers practice, “those that really can get close to their client, Paul Hastings understand what the client needs, and can think crea- Perkins Coie tively about meeting the client’s needs will find that to Proskauer Rose be a successful approach.” Seyfarth Shaw • When the economy is down, clients are concerned Waller about surviving, which often involves downsizing. Ad- Highly Recommended vising on reductions in a labor force is never pleasant. Akin Gump Strauss Hauer & Feld • Alison Marshall, a partner at Jones Day, says: “I do Bracewell think that we move more quickly in comparison to some Choate Hall & Stewart of the big commercial litigation cases. Also, our cases Dorsey & Whitney are not always as big, so associates often get more re- Duane Morris sponsibility. That is a plus, but juniors need to be pre- Dykema Gossett PLLC pared to take on that responsibility.” Foley & Lardner • Sometimes the intensity of the workload is high, es- Foley Hoag pecially when lawyers are gearing up for a big trial. Fox Rothschild Being responsive is critical. Bettina Plevan, a partner Goodwin Goulston & Storrs at Proskauer Rose, points out: “Sometimes clients have Greenberg Traurig, PA pressing emergencies, and you have to be responsive im- Groom Law Group mediately.” Haynes and Boone • Often lawyers will be dealing with a non-lawyer – an Holland & Knight HR professional for example – so they need to be able Jackson Walker to translate complex legal principles into clear con- Jenner & Block cepts for them. It’s critical to be able to write well, K&L Gates with a view toward addressing practical problems, and King & Spalding not overwhelming the client. This is also true when it Mayer Brown comes to explaining elements of a case or situation to Morrison & Foerster Munger, Tolles & Olson the judiciary. Orrick, Herrington & Sutcliffe • Joseph Costello, a partner at Morgan Lewis, warns: Paul, Weiss, Rifkind, Wharton & Garrison “This is an area of law that requires flexibility and adapt- Reed Smith ability. Every day there’s a new challenge, and the issues Ropes & Gray are not always predictable: an employee may have a Sheppard, Mullin, Richter & Hampton disability that needs to be accommodated; there might Sidley Austin be a union-organizing drive; or maybe an employee has Practice Areas Thompson & Knight complained about a post on social media, which another Troutman Sanders employee has published. Any of these situations could Vedder Price trigger a call to us.” Venable Vinson & Elkins • Stephen Poor, chair emeritus of Seyfarth Shaw, in- Weil, Gotshal & Manges forms us that in this field, “there is still that focus on Winston & Strawn the real world, which can be messier and stickier than the relatively sterile laboratory of the justice system. In For more detail on ranking tiers and locations, visit other words, success in this field requires a practical www.chambers.com bent and a propensity to solve problems rather than win arguments.”

198 Labor and employment www.chambers-associate.com

Current issues and local governments are passing laws; some of them June 2020 are around wage theft, some relate to paid sick leave, • COVID-19 will have a profound effect on this sector, and some are just new posting requirements for existing where we expect to see a significant increase in legal laws, but it creates a real challenge for those employers activities as businesses reduce staff costs to survive in that operate nationally.” a recession or adapt to new ways of working. • In February 2018, the Supreme Court ruled unani- • Wage and hour claims are a hot topic heading into the mously that employees are not protected from re- new decade. At the time of writing the Department of taliation if they report alleged corporate misdeeds Labor plans to raise the level of pay at which mainly unless they take it to the Securities and Exchange white-collar workers no longer qualify for overtime Commission. This comes two years after the Whistle- pay. The current benchmark is $23,660, but the new blower Augmented Reward and Nonretaliation Act of threshold could be in the $30,000 to $35,000 range. 2016 (or WARN Act) was introduced, which aimed to This could significantly increase costs for many em- strengthen the protections and incentives available to ployers (as well as the wages of many employees). whistle-blowers who report financial crimes. Instanc- • Colorado is one of the states to adopt a new ‘Overtime es of whistle-blowing have risen year-on-year since and Minimum Pay Standards Order,’ which came into 2011, according to the Annual Report on the Dodd- action on March 16th, 2020. This will cover almost all Frank Whistleblower Program, released by Office of workers in the state and raises the new qualification the Whistleblower (OWB). threshold to $35,568, rising to $55,000 by July 2024. • Immigration and Customs Enforcement raids rose • However, employers are finding loopholes through 400% during 2018. The agency carried out 1,525 work- such wage changes. Target, for example, raised its place-related arrests during last year, against just 172 wages from $13 to $15 in 2019, but then cut employee in 2017. While such activity generates much moral and hours and increase hourly workload to offset the costs. political condemnation (or support) there is a drier This kind of loop-holing could lead to class actions in commercial angle: employers can find themselves the coming years. thwacked with fines if they knowingly hire those with- • Thomas Linthorst shared his view on wage and hour out the right paperwork. In 2019, one employer was claims: “There has been lots of class and collective ac- cleared of any charge despite 680 employees of their tion litigation as everyone seems to be suing for over- being detained by ICE following a raid. time.” Some of the claims are being brought by those • One result of the #MeToo movement is a slew of laws covered by the ‘white-collar exemptions’ to the over- that 15 states have enacted in 2018 and 2019. These in- time requirements, while others have been brought by clude prohibiting provisions in settlement agreements employees claiming that they have not been properly that prevent disclosure of relevant factual information, compensated for ‘off-the-clock’ work. “One of the rea- greater training requirements for employees regard- sons for this spike,” explains Linthorst, “is that under ing sexual harassment, and a requirement for all pub- the federal overtime law, the Fair Labor Standards Act, a lic companies to have at least one woman on the board claim can be filed on behalf of all those who are ‘similarly by the end of 2019. States include California (the pio- situated’ to the plaintiff and, upon a determination by the neer), New York, New Jersey, Oregon and Illinois. court that the case is appropriate for notice, notice can • The Trust for America’s Health reported in 2019 that be sent to all others ‘similarly situated.’ When that hap- only 55% of US workers are legally entitled to paid pens, there can suddenly be hundreds of claims.” sick leave. In the wake of the 2020 coronavirus pan- • More generally, Linthorst pointed to “the rise of labor demic, there may well be more pressure for fairer sick- and employment laws, regulations and ordinances at the ness leave laws. state and local level.” He continued that “a lot of state Practice Areas Practice

199 www.chambers-associate.com Leveraged finance – Paul Hastings

Leveraged finance – Paul Hastings

Ever look at massive M&A deals and wonder, “where is all this money coming from?” They might well involve leveraged finance. We asked the Paul Hastings team for an insight into this important area of law…

Chambers Associate: What is leveraged finance? mentation, including, among other things, the amount of debt that will be provided, the conditions on which it will Katie Forer, associate: I usually start by describing lev- be provided, the flexibility and prohibitions that will be eraged finance as ‘the debt part of M&A.’ To those inter- associated with the documentation governing such debt, ested in the practice of corporate law, ‘M&A,’ or mergers and the cost of such debt. and acquisitions, is one of the most likely entry points. Any law student taking a corporations class has a taste Bianca Lee, associate: Associates typically draft com- of what is involved in the law of buying and selling commitment papers and credit documentation, as well as panies, the decisions a board might make if it’s interested coordinate diligence and execution of documents. in acquiring another business or if it’s comparing offers to sell the business to the right buyers at the right price. KF: At a firm like Paul Hastings, we pull in experts from our diverse practice groups to advise on any given aspect What I didn’t learn in law school but learned quickly after I of a deal that deserves special subject matter attention started at my firm (by necessity, as this often happens, to – for example, an environmental law partner to review a properly complete one of my first assignments) was how consultant’s report or someone from our real estate team those deals I was so interested in were financed. A ‘lever- to review a company’s leases – which allows us to use the aged buyout’ is a transaction in which the buyer, typically full scope of the firm’s capabilities to advise our clients. a private equity fund, buys a company with a combination of equity and debt – the same way a future homeowner may one day buy a home with her hard-earned down pay- “One of my favorite parts of the ment and a mortgage from a bank – because the buyer practice is I feel like there is always believes that under its ownership the company will grow more to learn.” and its returns will outpace the cost of the debt.

Shekhar Kumar, partner: Leveraged finance primarily CA: What makes it distinctive from other areas of fi- deals with loans made to private equity sponsors and nance in terms of legal practice? corporate borrowers in connection with leveraged buyouts or acquisitions. The concept of ‘leverage’ in these KF: Part of what makes leveraged finance so interesting transactions refers to a company accessing the debt is the market for these loans after they are wrapped up markets in connection with an acquisition in order to lev- and funded to the borrower. In addition to understand- Practice Areas erage – or get more out of – the equity it is contributing ing our clients’ and borrowers’ needs in the negotiation toward an acquisition. and drafting process, we also have to keep in mind which provisions will make the loans more or less appealing to CA: What kind of work is involved day to day? potential buyers. The syndicated finance market is constantly changing, and knowing what’s happening across SK: Much of the practice involves working with either the the spectrum of deals our clients are doing, and deals lending team or the borrower (depending on which side other firms and their clients are doing, is one of the most you are representing) to negotiate and draft the docu- important aspects of our job. mentation that will govern the loan being made to the borrower. BL: The loans underwritten by our clients, which are institutional banks, are typically syndicated instead of held Typically, leveraged finance lawyers will spend much of by our clients. As a result, we have to deal with lender their time negotiating a commitment letter and a fee let- comments from a wide variety of prospective lenders ter at the early stages of the M&A negotiations. These when drafting the credit agreement. In addition, because letters set forth the framework for the definitive docu- our clients are not holding on to the debt themselves,

200 Leveraged finance – Paul Hastings www.chambers-associate.com

they have to focus on the attractiveness of certain terms CA: What about associates? to secondary investors in addition to reviewing them from an internal credit perspective. BL: Associates typically keep the team organized for closing by coordinating closing documentation with op- CA: What are the highs and lows of the practice? posing counsel.

SK: The highs and lows of a typical leveraged finance KF: In addition to reviewing and drafting legal docu- practice generally both center on the unpredictabil- ments, associates are responsible for deal management ity and pace of a leveraged financing. Given that lever- and running process: preparing and maintaining the aged finance transactions are often an ancillary part of a closing checklist, coordinating communication with lo- broader M&A transaction, the demands upon the finance cal and regulatory counsel, wrangling third parties, and teams – on both the business and legal sides – are often ensuring that client’s questions are directed to the cor- driven by the broader M&A transaction and can rise rela- rect specialists. In our group, the sooner you’re capable tively unexpectedly. I often end my day having spent the of taking on larger responsibilities and bigger pieces of majority of my time focusing on transactions I was not the deal, the sooner you do. It’s an environment that is expecting to address when the day started. particularly conducive to thinking on your feet and hon- ing your skills in real time, which is – critically – coupled KF: One of my favorite parts of the practice is that I feel with the support of senior associates and partners ready like there is always more to learn, and that constant to jump in at a moment’s notice. learning keeps it interesting for me. We also get to do a lot of cross-border work with countries all over the world, CA: What qualities make for good leveraged finance which is both challenging and an incredible opportunity lawyers? to expand our collective legal expertise. That said, if I could change one thing about my practice, I’d probably KF: Good leveraged finance lawyers are inquisitive, re- lasso Houston, London and Sydney to pull them into my sponsive and flexible. Our practice is constantly chang- time zone. ing and our clients expect us to keep a finger on the pulse of the market to advise them of these changes and CA: What is a partner’s typical role in matters? make the necessary adaptations.

SK: Partners in a leveraged finance practice are inti- SK: To me, the three most important qualities for a good mately involved in the analysis, negotiation and drafting leveraged finance lawyer are (i) an attention to detail, (ii) of the relevant documentation in each stage of a lever- the ability to use past deal history and transaction expe- aged financing transaction. Much of a partner’s role is riences to address new issues, and (iii) the ability to work centered on negotiating the substantive terms of the in a cooperative and constructive manner with all parties documentation and acting as a liaison between their cli- involved in a transaction. ent and the opposing side’s client in an attempt to come to an agreement on more heavily negotiated or contested Leveraged finance documents tend to be dense and terms, and once such an agreement is reached, ensur- relatively complex, so an attention to detail is critical ing that the relevant documentation properly reflects the in ensuring that a document works properly and accu- terms of the agreement. rately reflects the business deal discussed between the clients. While many ‘issues’ leveraged finance lawyers Aside from their review of the actual documentation, cli- address on a day-to-day basis are often items they have ents will typically look to the partner on a matter for guid- dealt with in prior transactions, it is typical for either an ance on market terms and problem solving for potential ‘old’ issue to take on a slightly different fact pattern that issues. Given the complex nature of many leveraged fi- can change how it needs to be addressed or for new is- nance transactions, as well as the underlying M&A trans- sues to arise entirely. actions, clients often look to the partner – or other senior Practice Areas Practice lawyers on a transaction – to draw upon past experiences CA: What separates the Paul Hastings team from and issues and extrapolate from them in order to come peers? up with solutions to a new issue facing the client. SK: The breadth of Paul Hastings’ finance team more generally and leveraged finance team more specifically “It’s an environment that is particularly makes it particularly well situated for the changing land- conducive to thinking on your feet.” scape of leveraged financing transactions referred to below. Our team has significant experience representing a wide variety of financial institutions in all types of

201 www.chambers-associate.com Leveraged finance – Paul Hastings

leveraged financing – both in the syndicated space and CA: How do you see the practice evolving in the next in the buy-and-hold space – and across a wide variety few years? of industries. Our extensive experience across different deal sizes, industries and client bases has provided our KF: Incorporating ‘alternative’ or ‘direct’ lenders, as they lawyers at all levels with significant exposure that they are called, into our practice expands our skill sets and can draw upon to creatively address new issues that may diversifies the types of deals we do and the terms our arise in the course of a financing transaction. clients care most about.

KF: Most importantly, the leveraged finance group here SK: Many of these potential investors that are not tradi- is very close-knit: I know which podcasts my co-workers tional investment banks do not necessarily view a trans- are consuming (‘Where Shall We Begin’ with Esther Per- action with the same primary syndication or credit and el), which foods they’re avoiding (peanuts but not peanut risk criteria that an investment bank would be focused oil), and who will hoard the mic at our next karaoke night. on, which can have an effect on the types of terms that Did I mention we have a weekly team lunch? end up being more negotiated and the eventual resolution that is reached with respect to those terms.

“The leveraged finance group here is KF: That said, we will likely continue to focus on serv- very close-knit… I know who will hoard ing our bank clients as they navigate the changing land- the mic at our next karaoke night.” scape of the syndicated leveraged finance market and evolve their own businesses to accommodate the upward trends in private lending. CA: What trends have affected the practice recently? CA: What advice would you give students interested in SK: Documentation for leveraged finance transactions is the area? constantly being updated to account for any regulatory changes as to the nature of the terms or requirements BL: Getting familiar with the market would be helpful in with respect to the financing sources providing such seeing the types of deals in the market. Law school does debt, and the onus is on the legal teams to keep abreast not really touch on all the different skills that are useful of these changes and ensure that any required changes to a leveraged finance lawyer. are being made to the applicable documentation. KF: Take whatever classes you want, make sure to study KF: We’ve been seeing a lot of cross-pollination between Secured Transactions for the Bar exam, finesse your the European and US leveraged finance markets and email communication skills, and then come ready to ab- have generally found that the parties in our deals are sorb everything you’ll possibly need to know for the job getting more and more sophisticated over time. Trans- – on the job. Also, if your M&A professor skims over the action terms that were historically reserved for top-tier debt part of the sources and uses table and just refers private equity sponsors and large cap transactions have to the loans or bonds as ‘IOUs’ come see me after class. found their way down to deals in the middle market and You’ve got a lot to learn! beyond. SK: Get as much exposure to the practice area as pos- SK: One of the most interesting trends in the leveraged sible through internships or a summer associate position, Practice Areas finance space to me is the expanding scope of financial but more importantly, try and speak to any associates or institutions involved in leveraged finance transactions. partners you have access to in the field to get a better While leveraged finance deals were often primarily sense of their day-to-day practice and challenges and ‘syndicated’ transactions arranged by more traditional what they find exciting about their practice. investment banks, we are seeing new types of investors get more directly involved in leveraged finance transac- My initial exposure to leveraged finance was through tions at an earlier stage. being put on a financing transaction when I was a very junior restructuring attorney, and while I was convinced coming out of law school that I wanted to be a litigator, my experience on that transaction fundamentally changed my view of where I saw my career heading.

202 www.chambers-associate.com Leveraged fi nance – Paul Hastings

Authors

Katie Forer Shekhar Kumar Bianca Lee Associate Partner Associate Practice Areas Practice

203 www.chambers-associate.com Life sciences – Goodwin

Life sciences – Goodwin

Four associates from Goodwin share their views on what it takes to become a successful life sciences lawyer.

Chambers Associate: Which practice areas fall within to address diseases. It’s wonderful we are contributors to the life sciences sector? that and the work can be challenging due to the nature of the industry. The FDA and their framework can often Erini Svokos: On the corporate side, every life sciences change quickly. As a firm, we have the depth of knowl- company goes through the life-cycle of any other com- edge to create a cross-disciplinary group which allows pany: formation, internal growth, external partnerships us to work very well together. and either an exit or an IPO. I think the defining feature of the sector is the type of clients and the collaboration CA: What do you enjoy least and most about your within the field. Because it’s collaborative on the scientif- work? ic side, it tends to be collaborative on the legal side. The bulk of my practice is working on relationships between ND: I really enjoy working with clients that are working our clients and their scientific partners, either academic on cutting-edge technology and have the ability to make institutions or other pharmaceutical/biotechnology com- a substantial impact on patients’ lives. One downside as panies, to develop technology. outside counsel is that you work with many clients at one time and as a result you often don’t see the incremental Noelle Dubiansky: The life sciences sector crosses over events that occur after the closing of a transaction. many practice areas. Many of the commercial transactions that I work on are multidisciplinary and involve a Melissa Paddock: I enjoy working with our early-stage multitude of issues. For example, if I’m working on a stra- biotechnology clients that are pioneering potentially life- tegic collaboration between one of my biotech clients saving technologies. In addition to assisting with collabo- and a pharma company, I will routinely consult with col- ration and license agreements, I also have helped such leagues in our corporate, FDA, intellectual property and clients with drafting and negotiating their first clinical antitrust practice groups. and commercial agreements with various service providers and partners. It is exciting to work with a client’s lead James Xu: I focus on capital markets, IPOs, public of- business and scientific personnel to help them realize ferings and public company reporting. Beyond the core their goals. of corporate work I just mentioned, FDA and regulatory work is very active and tends to be more prevalent in CA: What are the differences between noncontentious Boston and Washington, DC. We have a robust IP group and litigious life sciences work? and licensing experts who focus on patent prosecution in chemistry and biology. In recent years, securities class ES: The corporate side of the life sciences practice is actions have also become a hot topic. more collaborative than the litigation side. Though things Practice Areas still can become contentious during an M&A transaction or a joint-venture negotiation, at the end of the day both “Our clients are brilliant and are on the sides are working toward the same goal of completing cutting edge of medicine. Often their the transaction. On the litigation side, both sides are goal is to develop therapies to address working for the opposite goal. diseases.” ND: On the transactional side, we are working with our clients and the other party to come to a mutual agree- CA: Does Goodwin have a particular specialty in any ment on the terms that will govern the relationship be- of these? tween the parties and that will form the basis for future collaboration. It’s not a win or lose situation that you of- JX: Goodwin has experts in each of these practice areas ten see in litigation. and we handle every stage of a life sciences company’s business. Our clients are brilliant and are on the cutting MP: I began my legal career by representing life science edge of medicine. Often their goal is to develop therapies companies in patent litigation before I made the switch

204 Life sciences – Goodwin www.chambers-associate.com

to become a life science licensing attorney. I have found ND: Life sciences work is very client-specific and tailored that on the transactional side, we work more collabo- to the client’s technology. You need to take the time to ratively with our clients and their partners to negotiate understand the client’s technology and products in order an agreement that may govern how the parties work to be able to advise them properly. together for years to develop and commercialize a life- saving therapy. On the litigation side, our role was much CA: Where does the life sciences sector intercede with more adversarial with opposing counsel and involved politics? developing the strongest case for our clients to present at trial. I’ve been able to merge both aspects of my back- ES: Developing a drug requires significant financial in- ground by structuring and negotiating settlement agree- vestment. Therefore, many of the therapies or technolo- ments for life science clients that are involved in contract gies our life sciences clients develop are expensive once or patent disputes. commercialized and sold to patients. A lot of the inter- cession between the life sciences sector and politics centers around the price of drugs once they’re being sold “Usually most of my clients are in the to patients. discovery process of their first drug candidate or have just completed Courtney Hetrick: Politics exert a tangible influence on their early clinical trials for a drug the life sciences industry, and the recent government shutdown is a salient example of this. The shutdown candidate.” delayed planned filings and interactions with the FDA and prevented many life science companies from rais- CA: Can you give us an idea of the clients you work ing funds in the public markets. These types of delays with and why they need lawyers? can hinder progress in the transformative therapies and diagnostics that life sciences companies are advancing. ES: I work with mostly early-stage biotechnology companies. Usually most of my clients are in the discovery process of their first drug candidate or have just completed “There is a push to incentivize their early clinical trials for a drug candidate. I’ve helped individuals to go into STEM fields and our very early-stage life sciences clients work with aca- encourage additional investment in demic institutions to license technology from a profes- hard science fields, which is a great sor’s laboratory to be used in the company’s scientific development. Because it’s such a collaborative field, a bulk thing.” of my practice is negotiating collaborations between our life sciences clients and either academic institutions CA: Are there any political developments that have af- or other biotechnology or pharmaceuticals to research fected the sector recently? Are there any on the ho- new drug candidates or technologies. Our role is to help rizon? navigate those negotiations and alert clients to potential future risks regarding the terms of those transactions. CH: Regulation on drug pricing has become a primary focus of the life sciences sector and the general public. I Sarah Ashfaq: We work with a broad range of life sci- believe that continued discourse around stabilizing drug ences companies, from early-stage to mature public prices and the availability of biosimilars will shape future companies. Their legal needs vary and can include for- policies and have an enormous impact on the industry. mation, corporation organization, structuring, assisting with employment-related issues, securing intellectual JX: Government fund cuts impact basic investments and property, and executing financing transactions. the actual science. There is a push to incentivize individuals to go into STEM fields and encourage additional in- CA: How does the work differ from more traditional ar- vestment in hard science fields, which is a great thing. Practice Areas Practice eas of law such as finance? There are cuts in government funding which could be a negative for the industry we operate in and it’s tough to ES: The differentiating factor of the life sciences sector gauge the net impact. Incentives by the government and is that it is focused on discovery and scientific achieve- allocation of resources to the Centers for Disease Con- ment. It’s both risky and rewarding. A great scientific trol will have an effect on how much companies are able achievement or scientific failure can have an extreme ef- to do as well as investments in early-stage life sciences fect on the success of a life sciences company. The work companies. differs because the clients are beholden to the science.

205 Life sciences – Goodwin www.chambers-associate.com

CA: What was your role on the latest deal/case you CA: What is the most interesting deal/case you have worked on? worked on?

ES: On larger M&A and collaboration transactions, I ES: The most interesting deals I work on are collabora- typically work with the partners to draft the underlying tions between our biotechnology clients and pharma- contracts and assist in the negotiations. It’s helpful for ceutical partners because each is unique. The terms of the associates on the transaction to have an in-depth un- the contract differ depending on the specifi cs of the derstanding of the nuances of the terms of the contract. technology to be developed. Also, because the fi eld is so collaborative, most of the negotiations occur in person, ND: Recently I worked on a deal for a client that involved with all of the parties in the same room. The in-person the out-license of a late-stage asset from a pharmaceu- negotiations are the most interesting because it human- tical company. For this matter, I was the senior licensing izes the counterparty and I think leads to better deals for attorney running the deal, including the negotiations, both sides. with support from a mid-level licensing associate and our corporate team on the equity portion of the deal. CH: I fi nd transactions in which I get to learn about the science driving the business to be the most interesting. JX: I am currently the lead associate on capital market When I draft a business section of a company’s registra- offerings. I manage a team of associates and I touch on tion statement or dig into regulatory diligence, I’m able every aspect of a transaction, including leading calls to learn so much about the latest developments in gene with clients and underwriters to drafting disclosures for therapy, immunotherapy and other cutting-edge fi elds. fi lings. My clients are doing groundbreaking work in important therapeutic areas, and it brings meaning to my work to be a part of it. “It is a very exciting time in life sciences with promising discoveries and CA: How important is a scientifi c background to your developments on the horizon!” work?

JX: It’s helpful, but not necessary for most practice areas in our fi eld. The exception would be patent prosecution. What’s more important is your work ethic and motivation to dig into a client’s business.

SA: It certainly helps, but it is not critical. I don’t have a science background and I learn by doing. My knowledge base has expanded tremendously since I joined Goodwin and continues to grow as my clients and their business needs evolve. It is a very exciting time in life sciences with promising discoveries and developments on the horizon! Practice Areas

Authors

Erini Svokos Noelle Dubiansky James Xu Sarah Ashfaq Melissa Paddock Courtney Hetrick Associate Partner Partner Partner Associate Associate

206 Life sciences www.chambers-associate.com

Life sciences

In a nutshell • Assist with M&A and venture capital work containing a Life sciences is an umbrella term that denotes all of the life sciences element. medical and scientific products and services that fall un- • Take the role of lead negotiator in business transac- der the following areas: biotechnology, pharmaceuticals, tions. medical devices, dietary supplements, foods, cosmetics and environmental agents. Realities of the job For lawyers, the practice area is particularly diverse as • Working hours vary across the three core areas. Regu- it encompasses several areas of traditional practice in- latory work offers the most flexibility, while the hours cluding regulatory, criminal investigation, enforcement, experienced by patent trial lawyers – especially as a compliance, competition, intellectual property and many case heats up – can be intense. Corporate hours, as you more. Clients range from governments to major global might expect, are dictated by the peaks and troughs of pharmaceutical manufacturers to startup companies the deal cycle, so periods of late nights are followed by that are inventing new medical drugs. Life sciences work lulls of more standard hours. is especially common in California and Boston. • “It is important to be a specialist but also to learn about other fields and how they impact on each other. For ex- All of this variety is broken down into three core areas ample, how the area of product liability might influence for lawyers: regulatory, intellectual property and corpo- regulatory advice,” says Scott Bass of Sidley Austin. rate. Regulatory work encompasses the likes of market “One of the main challenges is keeping up with fast- authorization of products, government affairs, competi- changing developments and staying informed.” tion matters and compliance work. Life on the intellec- • This fast pace is at the same time one of the most ex- tual property side is focused on protecting clients’ pat- citing elements of the practice, Bass feels: “The sec- ents, while corporate lawyers assist companies with both tor is constantly changing, so there’s the opportunity to their everyday and transformative matters, from basic break new ground often. You get to help industry but employment needs and governance issues to business- also assist governments and consumers in a lot of what altering M&A deals. you do.” • Latham & Watkins’ Judith Hasko agrees: “I think you have got to have a comfort level with an ever-changing What life science lawyers do legal and regulatory environment, and you have to be in- Regulatory terested and comfortable with change. It is an exciting • Assist clients with getting their products to market in industry, but people who do well like change.” various jurisdictions. • “You also have to be commercially sophisticated and • Liaise with the government when there are objections have an interest in the commercial drivers as to why a to clinical trials. company wants to do something,” Hasko continues. “In • Help companies to improve their manufacturing tech- my experience you need to work well with your client. niques. They have critical information you need. You need the • Advise clients on how to distribute their products in full input of your client and it’s your job to do that. It is line with healthcare laws. also challenging to tailor advice so that it makes sense to them. You just need to fully understand their goals. What is also tricky is the ability to keep a lot of differ- IP ent elements in your head about the law and the client’s • Represent clients during patent infringement pro- business at the same time when you are negotiating.” Practice Areas Practice ceedings. • “There is a lot of opportunity in life sciences as the legal frameworks and government’s policies are constantly changing,” Hasko explains. “This creates opportunities Corporate for lawyers. It is very exciting and rewarding to help to • Advise on complex contractual relationships like col- move products forward that will help people. It’s not a laborations and alliances. practice for everyone as it can be very technical, but for • Facilitate commercial transactions involving a life sci- those who have a connection with the industry I would ences element. say go for it.”

207 www.chambers-associate.com Life sciences

Rankings in Chambers USA long process from invention to product,” says Daniel Becker of Fenwick & West. “In a 25-year career only two or three inventions that I’ve worked on have become Top Ranked a marketed pharmaceutical product. We don’t get instant Cooley Covington & Burling or even near-term gratification.” However, he continues: Latham & Watkins “Every time I come to work it’s nice knowing that the WilmerHale work I am doing makes a difference. Very few products I work on make it to market, but when they do and you see Highly Recommended the positive benefits it is so thrilling.” Arnold & Porter Dechert Finnegan, Henderson, Farabow, Garrett & Dunner Current issues Gibson, Dunn & Crutcher June 2020 Goodwin Software as a Medical Device (SaMDs) has come to Irell & Manella • Kirkland & Ellis the attention of the US Food and Drug Administration Morgan, Lewis & Bockius (FDA) of late. In January 2020, the FDA uploaded a Morrison & Foerster discussion paper for a new regulatory framework that Perkins Coie would apply to the use of SaMDs that use AI and ma- Ropes & Gray chine learning technology. Expect further debate on Sidley Austin the topic and development of regulations that lawyers Wilson Sonsini Goodrich & Rosati will be advising clients on. The Lower Drug Costs Now Act was passed follow- For more detail on ranking tiers and locations, visit • ing a House vote in December 2019. The stance of the www.chambers.com Trump Administration, as detailed on the White House website, was that the Act fitted with its desire to lower • On the corporate side, Covington & Burling’s John prescription prices but not with its vision of encourag- Hurvitz tells us: “You have an opportunity to be involved ing innovation in the medical sphere and creating new in all phases of the deal cycle from structuring to negoti- drugs. It was reported that no Democrats voted against ating to implementation. Also, there is a lot of deal activi- the Act, while two Republicans voted for it. The next ty in the industry so you have an opportunity to work with stop for the Act: the Senate, which will decide when clients over many years and multiple transactions. These it may become law. The website Vox reported that this deep and longstanding relationships are very rewarding, is unlikely to occur in the near future. Drug pricing will both professionally and personally.” remain a central issue in policy though. • Hurvitz adds: “A scientific background is useful but not • A recent report by Deloitte on the outlook for life sci- necessary. It is more important to have an interest in the ences regulatory sphere identified many trends of underlying science and technology, as there is ample note. Among them were increased transparency in opportunity to learn about the latest innovations and the healthcare sector, which has seen the majority of breakthroughs. The practice is multidisciplinary so to be states taking a role in the regulation of drug prescrip- successful you need to be comfortable working across a tion pricing; the projected use of AI by life sciences range of legal disciplines, such as IP, competition, corpo- manufacturers to assist their efforts with compli- rate, and also to have a business mindset. The business ance programs; and the new risks involved in acquir- Practice Areas issues and legal issues are inextricably intertwined in ing assets as life sciences companies look to branch this practice.” out into areas such as cellular therapy. • Life sciences collaborations are, Hurvitz tells us, “very • 2019 was a bumper year for life sciences M&A, with complex. In addition to working across legal disciplines, huge billions-busting deals hitting the headlines, there are often multiple facets of the deal that have to including Bristol-Myers Squibb’s $74 billion tie-up be managed in parallel. It is like four or five-dimensional with Celgene and AbbVie’s $63 billion move for Al- chess at times. People who are smart, curious, have good lergan. Sector-specialist website FiercePharma has memories and attention to detail will do well. You also a rundown of the top ten life sciences deals and need to be comfortable in making judgment calls. There also raises a trend to look out for: increasing interest are often so many business and legal issues at play in from the Federal Trade Commission to investigate an- any given deal, that the clients typically look to the law- titrust issues as deals get bigger and the market con- yers to offer practical guidance.” solidates. Whether 2020 will see as much M&A activ- • When it comes to regulatory work, “the most challeng- ity in light of COVID-19 remains to be seen. ing thing we face in our practice is the challenge faced • 3D printing is being explored as a better way to manu- by industry as a whole: it is an extremely difficult and facture cell and tissue products. Drugs and disease

208 Life sciences www.chambers-associate.com

models can be tested on 3D-printed tissues instead of on animals or humans. • The medicines industry will likely find ways to profit from the coronavirus pandemic, even with a vaccine months away from becoming suitable for the mass market. Practice Areas Practice

209 www.chambers-associate.com Litigation

Litigation

In a nutshell • Draft pleadings. For example, if acting for a defend- Litigation attorneys help their clients resolve disputes. If ant, a litigator will prepare a motion to dismiss or an disputes are not settled by negotiation, they will be con- answer. cluded either by court litigation or by an alternative form • Assuming the case goes beyond the pleading stage, of dispute resolution, such as arbitration or mediation, litigators will ordinarily proceed to the discovery both of which are potentially more expeditious, tradition- phase, where each side serves discovery requests on ally less costly and out of public view. the other in order to gain access to evidence that is relevant to the case. Disputes may concern anything from unpaid bills or un- • There is a vast amount of document review, during fulfilled contract terms to problems between landlords which litigators attempt to find the ‘smoking gun’ that and tenants, infringement of IP rights, construction-re- will win the case – for example, an email that indicates lated claims, the liabilities of insurers, shipping cases, strong evidence of a conspiracy. “There is a perception defective products, entertainment industry wrangles… that a stunning moment in a trial will turn it all around,” the list is endless. Since the recession, many general Valukas tells us. “The reality is if you have two really litigators have become increasingly involved in conflicts talented lawyers who work exceedingly hard, the facts arising out of securities, white-collar crime and bank- will determine the case. For every hour in the courtroom ruptcy scenarios. there have been dozens of hours spent outside it, getting ready for that moment. All that preparatory work for trial Some litigators concentrate on specific types of claims, is so important.” making use of particular industry knowledge; others re- • Draft evidentiary objections. This involves constructing main generalists, applying their legal experiences – espe- arguments on the admissibility of evidence that may cially trial experience – to all manner of cases and clients. be prejudicial, or beneficial, to either side. Represent The onus is often on young litigators to specialize early: clients at pretrial hearings. “You were almost discouraged from being a specialist 30 • Prepare and conduct depositions. years ago. It is more important now to think about a special- • Senior litigators, normally at partner level, are respon- ty. A good litigator is a generalist: they can try any case, but sible for the way the case is presented and conduct also having a specialty is key to marketability now,” says the trial itself, deciding which arguments will resonate David Lender of Weil, Gotshal & Manges. Some litiga- with jurors and undertaking witness cross-examina- tors will focus on appellate matters – see our Appellate tion and closing arguments. “You always want to liti- chapter for more info. gate a case through the rubric of your main themes. One mistake lawyers make is to overcomplicate a case,” says Giuffra. “It’s very important to figure out and focus on What litigators do the four or so issues that matter most.” • Pre-litigation counseling and advisory work. Part of the job involves mitigating the risk of future wrangles by counseling clients on the ramifications of business Realities of the job Practice Areas decisions and ensuring compliance with laws and • “The great thing about litigation is the variety; every- regulators. “We focus on risk analysis,” Anton Valukas thing is new almost all of the time,” says Carey Dunne of Jenner & Block stresses. “All good litigators under- of Davis Polk. “The legal issues can be similar of course, stand that an appropriate evaluation of a matter in the but the industries are frequently different and so are the first instance can significantly reduce exposure to litiga- facts, which means the strategy and analysis is always tion.” challenging and evolving.” • Advise clients on whether they have a valid claim, or • Everything is driven by procedural rules and the time- whether to settle or fight a claim made against them. table of the courts. Good litigators understand how “One of the biggest mistakes lawyers can make is to best to maneuver within the system, while also devel- oversell the chances of winning,” Robert Giuffra of Sul- oping case-winning strategies. livan & Cromwelltells us.”The client needs the best pos- • As litigators need to abide by tight deadlines, the na- sible assessment of the chances of victory and what it ture of the work is often cyclical. “There may be periods will entail to get them there.” when you just have a tremendous volume of work that needs to be accomplished in a short amount of time, but

210 Litigation www.chambers-associate.com

Rankings in Chambers USA

Top Ranked Highly Recommended Alston & Bird Akin Gump Strauss Hauer & Feld Baker Botts Allen & Overy Choate Hall & Stewart Arnold & Porter Cleary Gottlieb Steen & Hamilton Axinn Covington & Burling Bracewell Cravath, Swaine & Moore Cahill Gordon & Reindel Davis Polk & Wardwell Clifford Chance Debevoise & Plimpton Cooley Dechert Crowell & Moring Dorsey & Whitney Duane Morris Dykema Gossett PLLC Fox Rothschild Foley & Lardner Freshfields Bruckhaus Deringer Foley Hoag Fried, Frank, Harris, Shriver & Jacobson Gibbons P.C. Goulston & Storrs Gibson, Dunn & Crutcher Hangley Aronchick Segal Pudlin & Schiller Goodwin Harris, Wiltshire & Grannis Greenberg Traurig, PA Holwell Shuster & Goldberg Haynes and Boone Irell & Manella Holland & Knight Katten Jackson Walker Mayer Brown Jenner & Block Milbank K&L Gates Mintz Levin Cohn Ferris Glovsky and Popeo PC Kasowitz Benson Torres Morrison & Foerster King & Spalding O’Melveny & Myers Kirkland & Ellis Patterson Belknap Webb & Tyler Latham & Watkins Proskauer Rose Morgan, Lewis & Bockius Schulte Roth & Zabel Munger, Tolles & Olson Shearman & Sterling Nelson Mullins Riley & Scarborough Sheppard, Mullin, Richter & Hampton Orrick, Herrington & Sutcliffe Thompson & Knight Paul Hastings Troutman Sanders Paul, Weiss, Rifkind, Wharton & Garrison Vedder Price Perkins Coie Venable LLP Reed Smith Weil, Gotshal & Manges LLP Ropes & Gray White & Case LLP Sidley Austin Wiley Rein LLP Simpson Thacher & Bartlett Skadden, Arps, Slate, Meagher & Flom & Affiliates Sullivan & Cromwell Vinson & Elkins Waller Willkie Farr & Gallagher WilmerHale Wilson Sonsini Goodrich & Rosati Winston & Strawn

For more detail on ranking tiers and locations, visit www.chambers.com Practice Areas Practice

there’s also a level of rush and excitement about that,” an adjustment and some people aren’t ready for that. You says David Zinn of Williams & Connolly. need to be adaptable.” • “You have to be someone who is willing to deal with un- • “Searching through documents is often like looking for certainty; litigation is inherently uncertain,” Giuffra tells a needle in a haystack; it can be a taxing and tiring pro- us. “Planning goes out the window; I’ve had to learn how cess,” explains Joseph Warin of Gibson Dunn. Howev- not to plan,” confirmed one Fried Frank associate. “It’s er, for junior attorneys this is not as prominent a task as it once was. While initial document review is often

211 www.chambers-associate.com Litigation

outsourced to contract attorneys, litigators at all levels Advice from the litigation gurus of seniority need to have excellent knowledge of the Carey Dunne, partner, Davis Polk: key documents in a case. “Focus more on precisely what you would like to do in the • Juniors do also perform written work, like first drafts law; these days the cost and uncertainty of employment of pleadings, and the preparation of questions to be make the opposite a very unwise approach. That’s because asked, and sometimes conduct depositions. being broad and saying that you’re not sure what you want • Litigators need to express themselves succinctly and to do won’t work anymore; you need to demonstrate on your precisely in all their communications. resume that you are dedicated to a certain field. People • “Taking apart a set of arguments is like a labyrinth of need to focus as soon as possible and specialize.” pros and cons,” Warin says. “You need to figure out which are likely to be the most persuasive for a judge or Joseph Warin, partner, Gibson Dunn: jury, as well as discarding arguments that you eventually “When people say to specialize, you should pay attention to find out are flawed.” that but also make sure you hedge your bets in areas that • Deciding upon which arguments will be the most ef- might prove popular in the future.” fective is made easier by jury simulations. “You don’t go to trial in a big case without having some testing of “Seizing on a new trend, understanding the legal implica- which key points resonate with potential jurors,” accord- tions and becoming an expert on it is useful because when ing to Jonathan Lerner of Skadden. a new client comes in you can address it.” • Frontline participation in full-blown trial advocacy generally isn’t something that litigators experience David Zinn, partner, Williams & Connolly: until later in their careers. “Sometimes young lawyers “I would advise aspiring litigators to try and find a job don’t get the opportunity to be in the courtroom,” says where you’re going to quickly get the types of experience Randy Mastro of Gibson Dunn. “I always encourage you need to develop your skills. Whether that means going them to take on additional pro bono assignments where into private practice or working for the government, I would they can get that experience.” try and think about what skills I want to develop as a litiga- • Litigators may be known for having the gift of the tor and how can I develop them quickly.” gab, but it’s just as important to put your ears to good use. Brad Brian of Munger, Tolles & Olsen tells us: “What’s always striking to me is that some cases can go “If you’re in a courtroom you need to listen to what the on for a very long time, so it may take several years to re- judge and opposing counsel are saying. So many lawyers ally go through enough cases to get the type of experienc- at the beginning and end of their careers are tied to their es you want to get in order to be a good litigator. Therefore scripts for their outline or witness examinations and are it’s important to make sure that, when choosing your next not listening to what the judge, opposing counsel or wit- step, you’re going to a place that will get you on your feet nesses are saying.” quickly – because even in places like that it still takes time • The overwhelming majority of cases will settle before to figure out what you like and dislike, and what you’re reaching trial. good and not so good at.”

The state of the market When a recession hits, law firms go into battle mode and shift their focus from transactional to contentious, Practice Areas as clients’ concerns become less expansionist and more survivalist. Against this backdrop we’ve already seen litigation overtake M&A as the biggest entry-level practice group.

212 Media and advertising www.chambers-associate.com

Media and advertising

In a nutshell • First Amendment law is a substantial specialty in itself Media and entertainment, advertising and sports are dis- – advising on issues of free speech, censorship and tinct yet overlapping areas of the law. Some aspects of defamation, among other contentious issues. their practice are common to them all – contracts law, for example – but ensuring a ‘100% beef burger’ abides by the rules stated by the Federal Trade Commission (FTC) Advertising is clearly a matter for an advertising specialist. • Advise advertisers on playing by the rules according to advertising watchdogs including the FTC, and legis- Whichever strand you practice, one thing is for certain: lation such as the Children’s Online Privacy Protection the work is incredibly varied. None of these specialties Act. has its own distinct branch of law. Rather, they involve • Counsel manufacturers on all facets of food and drug piecing together elements of a broad range of legal dis- labeling, marketing and advertising requirements. ciplines and applying them to one particular industry • Advise on sweepstakes and other commercial promo- sector. tions. • Litigate false advertising claims, from single-party Media and entertainment to consumer class actions – particularly those falling Media and entertainment lawyers provide legal advice under the Lanham Act, the federal false advertising and representation to those working in the entertain- statute. ment industries, including the fields of theater, televi- • Provide copyright advice on advertising issues. sion, music, publishing, gambling, film and digital media. • Negotiate advertising-based content licensing agree- The practice has a major fault line down the middle, with ments for a whole range of different media. most lawyers falling on either the transactional or the contentious side. Many entertainment lawyers hone one particular specialty – the music industry, for example – Realities of the job while others remain generalists. • You need to be prepared that the actual job of an entertainment lawyer is not going to be all that different Advertising from that of any other lawyer. “The day would be the Advertising lawyers advise on every aspect of brand pro- same as that of a junior associate working on a matter motion, from drawing up contracts and deploying ‘viral’ in any industry: reading, drafting, spending a long time campaigns to settling false advertising disputes. Again, on the phone with clients. It’s no different than work for the role of ‘advertising lawyer’ is something of a mis- any similar transactional or litigation practice group,” nomer as its attorneys tend to fall into sub-specialties – confesses Ruth Fisher, a co-chair of Gibson Dunn’s generally using their expertise to advise on regulatory, media, entertainment and technology practice group. transactional or false advertising matters. You will be expected, however, to understand very industry-specific requirements, such as “where the rights are owned and how they are owned.” What lawyers do • “If you could visualize it, you have to think about it as Media and entertainment a wheel, where there’s IP, advertising, data content and • Draft and negotiate record, publishing, producer, man- technology – all of those are interrelated,” illustrates agement, distribution, touring, merchandising, corpo- James D. Taylor, chair of the advanced media and rate sponsorship, licensing and internet agreements. technology group at Loeb & Loeb. You will need to • Consult with artists, record companies and publishers master many different disciplines whether you are Practice Areas Practice regarding their financing, entertainment and internet sports or media lawyer, and excel at those. Although strategies, plus the protection of their IP rights. it means more work, he stresses that “the value and • Advise media and entertainment companies on their benefit of this is that you develop a holistic approach.” M&A and merger activities. • Working in a fun sector doesn’t mean fun work all the • Provide pre-publication content advice to broadcast- time! There is an awful lot to learn as you go: “It takes ers and publishers. a great deal of hard work to stay current. Projects move • Litigate matters including contractual, copyright and very quickly,” warns Kenneth Florin, chair at Loeb & trademark, employment, and payment disputes. Loeb. “It’s not a nine to five job, but if you want to dig deep, there’s plenty of opportunity.”

213 www.chambers-associate.com Media and advertising

Rankings in Chambers USA eccentric people than other industries, not only as business people but as lawyers too…” If the idea of working with eccentric people scares you away, you may find Top Ranked some consolation in the fact that you do not need to Cravath, Swaine & Moore Debevoise & Plimpton change yourself or your style to fit into the industry: Jenner & Block “I think so many types of lawyers that other industries Latham & Watkins need, this industry needs too, so there is wide room for Munger, Tolles & Olson lawyers with different styles.” Patterson Belknap Webb & Tyler • “In some ways it’s high-profile. When you go to a dinner Paul, Weiss, Rifkind, Wharton & Garrison party most people have an understanding of the issues Wiley Rein you work on,” says Pomerantz. However, he goes on to add: “Much of what you do is what you’d do in other in- Highly Recommended dustries, it’s just that it tends to be of more interest to Akin Gump Strauss Hauer & Feld wider community.” Ruth Fisher has a strong view on Cahill Gordon & Reindel Cooley this: “The point I’m trying to make is that it’s a wonderful Covington & Burling practice intellectually but it’s not all about the glamor. Crowell & Moring We don’t meet the stars!” You should be prepared in- Davis Polk & Wardwell stead to meet studios, people dealing with large stu- Gibson, Dunn & Crutcher dios and distributors, remembering that “clients are all Greenberg Glusker Fields Claman & Machtinger the same: they expect you to do excellent work instantly.” Holland & Knight • With tough competition and few jobs, the path to be- Katten coming a lawyer in this discipline may be a long and Kirkland & Ellis arduous one, so it is for the patient. It’s important not O’Melveny & Myers to overestimate one’s chances: “No one should think Paul Hastings Proskauer Rose they have an in because they have worked for an en- Reed Smith tertainment company. Half of students have experience Sheppard, Mullin, Richter & Hampton in media companies.” Pomerantz suggests you pick a Sidley Austin firm that does some entertainment work so you have Skadden, Arps, Slate, Meagher & Flom & Affiliates a chance to practice it, but “if not, do general work and Vedder Price that will give you experience relevant for industry.” It Venable may sound a little obvious, but all sources agree that Waller the number one rule is simply to be a first-rate lawyer Weil, Gotshal & Manges WilmerHale

For more detail on ranking tiers and locations, visit Current issues www.chambers.com June 2020 • Probably the most significant trend affecting the media industry today is the massive displacement across • The fast pace and an ever-changing nature of the job the sector caused by new technologies. Lawyers must is what actually makes it so exciting and special: “I be aware of the potential new opportunities and chal- think what’s of particular interest to younger attorneys is lenges to their practice as a result of technological in- Practice Areas that the legal landscape is changing fairly dramatically novations. Ruth Fisher sees “a lot of opportunities now because of technology,” says James D. Taylor. “What’s in helping clients navigate new distribution methods and unique is that what we are doing hasn’t existed before: finding ways for the ever-increasing number of channels we are at the very beginning of a digital revolution with to get to audiences.” Glenn Pomerantz says that dra- things continuing to accelerate.” On the other hand, matic changes in the music business brought about some elements of work do not change, so you can ex- by rampant piracy in the early 2000s led to legitimate pect some continuity: “Whether it is a talented director businesses launching their own music services includ- creating a new movie, or an artist creating a new record- ing Apple’s iTunes, Spotify and Amazon Prime: “A lot of ing, you have issues around that. Disputes arise between companies turned toward streaming services, and law- actors and studios. Those existed 30 years ago and stay yers are affected by that… deals, issues, disputes.” the same,” reveals Glenn D. Pomerantz, litigation part- • New technology presents new threats to the media ner in the Los Angeles office of Munger, Tolles & Ol- industry in terms of IP infringement. To take new real- son. time piracy as an example, we can expect to see more • “I have wonderful clients,” enthuses Pomerantz, “but copyright holders litigating for copyright infringement. the entertainment industry tends to attract more volatile, However, the owners of live streaming platforms may

214 Media and advertising www.chambers-associate.com

find an easy escape considering that current US law ogy is similar to Photoshop for imagery, and may make is still not firm on this point. Another option for copy- studios liable in claims where actors don’t consent to right holders is to harness new technology to their own being digitally retouched. advantage to protect themselves from piracy. “Every • Extra complications come when the actor is deceased. company is thinking of how to take advantage of this Magic City Films’ upcoming film Finding Jack an- great opportunity while at the same time trying to com- nounced in 2019 that James Dean (d. 1955) has been bat illegal distribution of their crown jewels,” explains cast in a lead role. 2014’s Dove Chocolate advert fea- Glenn Pomerantz. turing Audrey Hepburn was one of the earliest main- • California’s Assembly Bill 5 came into effect on Janu- stream cases of digitally reviving an actor. ary 1st, 2020. The bill requires ‘gig economy’ workers to be classed as employees. This will affect the entertainment industry, though it seems the rules of the bill Advice from the top work differently for photographers, freelance writers Scott Edelman, litigation partner and co-chair of and graphic designers. How broadly those definitions Gibson Dunn’s media, entertainment and technology of those are used will affect entertainment’s use of group: screenwriters, camera operators, animators, etc., and “From my perspective, I don’t think entertainment law likely be a source of future litigation. is inherently ‘sexy.’ I don’t work with celebrities – I work • Digital forms of advertising are clearly overtaking the with studios, networks and music companies, which are traditional channels. Video will still be the biggest corporate enterprises just like Bank of America, General form of media used – though its focus is slowly moving Motors and the Shell Oil Company. Even for those working from traditional broadcast television advertisements at boutique firms who represent the talent, it isn’t neces- to social media and YouTube video ads. The trend is ex- sarily easy. Some celebrity clients can be demanding and pected to continue and it’s easy to see why companies frequently need to be pampered. Competition to do enter- may favor investing in digital advertising – advertise- tainment work is intense, and nobody should get into enter- ments can be targeted, personalized and interactive tainment law thinking it is easy.” within the platform. • More players, including Amazon, Hulu and YouTube, “My general advice is don’t load up on entertainment class- are presenting further challenges to traditional TV es at law school – maybe just take a couple of basic classes players with their live streaming services. This will like copyright or IP. If you want to get into entertainment have an impact that spans beyond just advertising, as law, use law school as a time to cover basic solid subjects media and entertainment partner Matt Thompson at including securities, commercial law and antitrust. There Sidley Austin tells us: “Broadcast TV has been a declin- will be plenty of time to focus on entertainment later.” ing for a long time – apart from sports and awards shows. At some point, an entity like Amazon is going to buy the Faiza Saeed, presiding partner at Cravath, working in broadcast rights for the NFL. When something like that M&A primarily with media and entertainment clients: happens, the future of broadcast TV will be uncertain.” “The clients are less accustomed to full-blown long-form • ‘Deepfake’ technology uses video and audio to rep- agreements, and some of the dynamics that go into being licate images and voices of people, and can be used more precise in describing a transaction and what the re- to imitate public figures like celebrities or politicians. strictions will be on two companies going forward. It’s often Despite being relatively new, the sophisticated tech- helpful to speak their language and understand how they nology has become almost indistinguishable from real do deals in their own business, so you can do a better job life. At the moment, deepfakes have been used primar- of counseling.” ily for fun celebrity replacement YouTube videos (Sty Stallone in Home Alone anyone?) This growing tech- “I think that students have to make a decision as to which nology means that in the future, studios could create side of the business they’re interested in. Are they deal-ori- a personalized film experience by letting audiences ented, in terms of being a corporate transactional lawyer, or choose their favorite actor to watch as the main char- more on the entertainment side – dealing more with talent? Practice Areas Practice acter. This would bring up complex legal issues around They’re very different career paths that lead to working at who gets paid and whose intellectual property the per- very different firms, and many are fuzzy as to which side formance becomes. For trial media lawyers, the tech- they want to be on.” nology could also be used in more sinister ways – as a tool for blackmail, defamation and manipulation. Larry Weinstein, co-head of Proskauer’s false adver- • Similarly, technology is being used to show celebri- tising and trademark group in New York: ties de-aged in motion pictures (Robert de Niro in The “It sounds almost stupid to say as it’s so obvious, but if you Irishman, Will Smith in Gemini Man and Carrie Fisher in want to be a good advertising lawyer you need to find ad- Star Wars are but a few). The potential for this technol- vertising interesting. If you’re a sports lawyer, you have to

215 www.chambers-associate.com Media and advertising

like sport. If you’re an entertainment lawyer, you have to like the music or the movie business, for example.”

“When students are searching for law firms to apply for, they should try and get beyond the generalities they see on the firm websites. We do this kind of work 24/7, and there’s a big difference between practicing advertising law at a firm like ours compared to other firms who only do false advertising work on rare occasions.” Practice Areas

216 PPP – Ashurst www.chambers-associate.com

PPP – Ashurst

We partner up with Ashurst to go public with how to become a PPP projects lawyer.

Chambers Associate: What are public-private pro- subcontracts for design and construction, and opera- jects? tions and maintenance; and the finance documents. As- sociates have an important role in drafting and negotiat- Tristan Robinson: Public-private partnership (PPP) pro- ing all of these documents. This involves working closely jects are typically public-works infrastructure projects with the client, which may be the government authority, (e.g., roads, bridges, tunnels, airports, office buildings) the private sector developer or the banks lending to the involving an element of private-sector participation in, for project. It also involves working with other advisers – example, the design, construction, and financing. technical, financial and insurance.

Matthew Rickards: A government authority asks a pri- ML: The role of an associate will vary depending on the vate-sector developer to design, build, finance, operate client of the firm. When working on the public-authority and maintain the infrastructure. A typical project may side, associates are responsible for assisting in the pro- be for a term of 35 years: five years for construction and curement and execution of the project agreement after a then 30 years for operations and maintenance. Some of developer is selected. This may include drafting procure- the key benefits to developing public infrastructure us- ment documents (including request for qualifications ing a PPP are introducing private-sector innovation and and request for proposals, and responding to sponsor best practice; focusing on the long-term maintenance questions on such documents) and drafting the project of the asset; and facilitating more infrastructure invest- agreement and related dropdown agreements that will ment by using private-sector finance. be executed with the selected developer. If working for a sponsor, you might assist in reviewing the procure- Maria Linnen: An example of a PPP project is the Geor- ment and project documents, and working on the financ- gia Department of Transportation project, aimed at de- ing documents, and preparing the sponsor’s bid. On the signing, building, financing, operating and maintaining lender side, you will be responsible for drafting financing improvements to its interstate highway system. The De- documents and reviewing project documents to due-dil- partment is in the process of soliciting a private-sector igence risks relevant to the lenders. developer. KD: These projects have two phases – a bid phase, during Kimberley de Looze: A PPP project is a collaboration which several private entities compete and submit pro- between a public agency or authority and a private par- posals for the project, and a closing phase, during which ty (or, more often, a team of private parties) to develop the contract is executed with the successful proposer a project. The projects that we work on at Ashurst are and shortly after, financial close is reached. When acting infrastructure focused, for example building roads, for the public partner, associates are primarily engaged schools, airports and trains. Typically, PPPs involve an in the bid phase preparing project documents, including element of financing provided by the private entity. This procurement solicitation documents such as requests investment is paid back either from public entity fund- for proposals and contract documents to govern the PPP. ing, generation of revenues from the project or a mixture When acting for the private partner, associates conduct of both. Another hallmark of a PPP is that it is generally due diligence of the project documents, prepare com- a long-term project involving the initial design and con- ments and attend negotiations with the public partner. Practice Areas Practice struction of the project followed by 20 or 30 years of op- They also draft subcontracts and, if the client is the suc- erating and maintaining the project. cessful proposer, they review and negotiate financing documents and assist in reaching financial close of the CA: What do associates do? project. When acting for lenders, associates assist in preparing term sheets during the bid phase and in preparing MR: A PPP project involves a complex web of contrac- and negotiating financing documents during the closing tual arrangements. The principal agreements include phase. the project agreement between the government authority and the developer’s project company; the developer’s

217 www.chambers-associate.com PPP – Ashurst

CA: What do partners do? to be part of a practice that is working to make the US a better place to live. One of the hardest parts of the prac- KD: As well as overseeing all work conducted by associ- tice is working through political red-tape that can hold ates, partners are heavily involved in high-level project up efficient implementation of a project. structuring. Partners have an important involvement in determining and negotiating the appropriate risk alloca- KD: The work is interesting and associates are able to tion between the public and private parties. This is es- gain a deeper understanding of assets than with other sential to ensuring that the project can be delivered on transactional work. Every project is different and chal- budget and on time and that all parties, and the public, lenging and there is always something to learn. Lows achieve a good outcome from the project. include long project timelines that mean you may only work on a few projects in the formative years of your ca- MR: Partners are responsible for developing the reer. As a result, it can take longer to gain a broad range structure of the project and coordinating the draft- of experience, however, the depth and understanding of ing and negotiation of all the documents referred to the experience you do have is greater. above.Fundamentally this is about allocating risk to the entity within the project structure which is best able to CA: What internal or external factors are driving the manage that risk. This requires a good overall under- sector? standing of how the different parts of the project work together. Given the complexity of a PPP project there are MR: There is a huge demand for public infrastructure many different people working on the project.A key ele- In developed countries such as the US and Europe, this ment of the partner’s role is to help manage and coordi- involves replacing infrastructure assets which have nate the input from all these people to ensure that the reached the end of their useful life. In developing coun- project progresses efficiently. Partners aim to develop tries such as parts of Asia and Africa, new infrastructure close relationships with their clients and the broader in- is needed to support rapidly expanding economies. An- frastructure sector. other key factor is the shift to new technologies. This includes both a move toward greener technology (see below) and also the development of infrastructure to “... it’s exciting to be part of a practice support connectivity – for example, expanding broad- that is working to make the US a better band networks. place to live.” ML: The biggest factors driving the sector are the need for new and repaired infrastructure, and years of under- CA: What are the highs and lows of working in this investment by the government in infrastructure. These practice area? factors have created an immediate need to repair and rebuild. PPPs offer a public authority the opportunity to MR: There are various highs: access available private resources, financing and knowledge to react to this immediate need. Learning about infrastructure in many different sectors – for example, finding out how the introduction of auton- KD: I’d propose that the single largest factor currently omous vehicles will impact on the road sector. Working driving the sector is the ready acknowledgement by all toward building something tangible for the public ben- sectors that infrastructure in America is crumbling, and Practice Areas efit. After working on a complex deal for many months or there is bipartisan support to address the situation. Gov- years, it is very satisfying attending the project opening ernments are allocating more funding to infrastructure after construction has been completed.Working together projects and we are seeing the size and scale of such with the multiple stakeholders and advisers on the pro- projects dramatically increase. Use of PPPs is increas- ject.There may be tensions at times, but broadly every- ingly being seen as the best way to accelerate the pro- one is working toward the same goal. cess of delivering critical infrastructure while providing best value for money to the public. As for the lows... given the complexity of the projects, progress can sometimes seem very slow. It requires pa- CA: How is the increase in renewable and clean energy tience! affecting the PPP market?

ML: One of the most exciting parts of PPP projects is the MR: In the waste sector, public authorities around the creation of a tangible piece of infrastructure for which globe are using PPP projects to develop waste-to-ener- the public will benefit. The infrastructure in the US is in gy plants. Across many different sectors, the industry is desperate need of repair and rebuilding, and it’s exciting looking at how green technology can be integrated into

218 PPP – Ashurst www.chambers-associate.com

a project – for example, solar paneling on public-sector ML: Working in the PPP area offers associates several buildings or using biomass heating systems. Also, green opportunities in by their fifth year of practice. At Ashurst, energy policies mean that a higher public benefit value we have the opportunity to work for clients on all sides of may be attributed to certain technologies. For example, PPPs and gain exposure to different types of practices. high-speed railmay be seen as greener than developing By their fifth year, associates may continue in private more road or aviation capacity. practice, or leave the firm to work in-house for a public authority, lender or private developer. ML: Many US states and cities have set goals to transition all or a majority of the power generation from polluting CA: What opportunities are unique to Ashurst? sources to clean ones. PPPs are a key tool in developing renewable energy projects that allow states and cities to MR: I think Ashurst is unique in how well it operates as a reach those goals. From the point of view of the spon- single global projects team. We have market-leading PPP sors and developers, being able to rely on a PPP, which practices in the UK, Europe, Australia and US. The pro- normally provides certainty around the energy price and jects partners and associates around the network work demand, is a key factor in ensuring that the projects are together on new opportunities and share best practice. viable and can obtain financing. These projects also tend to lend themselves to tax breaks which are beneficial to This global network also presents a great opportunity private developers. For these reasons, the increase in re- for people to move between different offices around newable and clean energy will have a positive effect in the world. To use my own career as an example, I spent the PPP market. ten years working in UK PPP; then seven years in Tokyo focusing on transport and energy projects around Asia.I KD: The infrastructure industry is not as affected by the then moved to New York to help grow the US team, tak- increase in renewable and clean energy as other indus- ing advantage of the huge potential for US infrastructure tries. However, the public sector is increasingly driven by development. sustainability goals and is encouraging and mandating greater incorporation of clean energy for assets with sig- TR: Ashurst has the resources of a global law firm cou- nificant energy use. This can have implications on project pled with the local knowledge and dexterity of a law firm costs and team structures. with a smaller footprint.

ML: We have one of the deepest benches of associates in “At Ashurst, we have the opportunity the PPP area in the US, which provides us the ability to to work for clients on all sides of PPPs work in numerous project roles at any given time. While and gain exposure to different types of PPPs are relatively new to the US, they have been used practices.” in Australia, Europe and other countries for quite a while. Because of our international connections within Ashurst and the firm’s focus on infrastructure and PPP globally, CA: Where can new associates expect to be in five we have the ability to access the experience and knowl- years? edge of our international offices.

MR: After five years, an associate will be an integral part KD: It’s also worth highlighting the ability to work on of the firm’s projects team. The associate will have a good all sides of a transaction. Often firms work exclusively understanding of how projects are structured and how with the public sector or the private sector; at Ashurst risk is allocated between the parties.The associate will we have the benefit of acting for governments, private be able to lead on particular documents with guidance developers and lenders. This provides a unique opportu- from senior members of the team.Individuals may start nity to understand projects from all angles, allowing us specializing in certain areas – some may choose to focus to better serve all our clients. more on the project documentation, others on finance. Practice Areas Practice

KD: Within five years, associates can expect to have a “I think Ashurst is unique in how well deep understanding of the key principles driving PPP it operates as a single global projects deals and will likely have a good understanding of a few team.” key asset classes. They will be attending client meetings and negotiations and running key pieces of the transaction process. CA: How can students and junior associates keep up- to-date with the market and industry trends?

219 PPP – Ashurst www.chambers-associate.com

MR : Stay abreast of trends, politics and technological equipped for a job that can be intense in terms of expec- developments in the sector by reading the national and tations and requires an interest both in the big picture trade press coverage – for example, in the Financial Times , commercially and the fi ner details of contracts. The re- the Economist and Infrastructure Journal . On social media, wards are collaborative and compelling teamwork, and particularly LinkedIn, follow organizations active in the the satisfaction of bringing to fruition tangible projects sector to see industry briefi ngs. For example, Ashurst that directly benefi t the greater public. publishes “InfraRead” every six months, which provides detailed articles on market developments. ML : My advice is to fi nd courses and internships related to project fi nance when possible. Because project ML : I recommend P3 Bulletin and Inframation News . fi nance is a corporate practice, if such options are not These news organizations provide daily updates on pro- available (as law school curricula are often litigation fo- jects and market trends. cused), seek out internships related to fi nance, corporate law and construction. TR : The non-profi t organization Young Professionals in Infrastructure is a fantastic networking resource and TR: Take classes in public contracting, environmental law also includes an education and career development and land use. Reach out to law fi rms regarding summer arm.Get involved! associate programs.

CA: What advice would you give to students who are KD : Focus on building transactional skills. Regardless of interested in this area? which side of a transaction you end up working on, strong transactional skills will stand you in good stead. Having MR : Read as much as you can about the sector; pursue experience in fi nance, engineering and real estate will summer placements at law fi rms with a good reputation also really set you apart in this area of work. in the industry; consider whether you would be well-

Authors

Matthew Rickards Maria Linnen Tristan Robinson Kimberley de Looze

Practice Areas Partner Associate Senior Associate Senior Associate

220 Privacy and data security – Perkins Coie www.chambers-associate.com

Privacy and data security – Perkins Coie

Data is the great commodity of our age. It’s a hot, controversial topic that needs good lawyers to handle its complexities. Step forward, Per- kins Coie.

Chambers Associate: How exactly would you describe the main points of contact for clients and carry a heavier data security? administrative burden relative to the group.

Erin Earl: Data security is the suite of technological, or- CA: What do the senior associates do? ganizational, physical, and other measures deployed to protect non-public information held by individuals, com- NM: Senior associates (called “counsel” at Perkins) do panies, or other organizations. Data security as a legal similar work to partners, with a bit less business devel- practice involves helping clients develop their processes opment and more responsibility for supervising junior for putting appropriate protections in place and respond associates and creating work product from scratch (e.g. to legal issues that arise when those protections turn out working with a team to create a brief that is ultimately to be ineffective. reviewed by the partner).

Jim Snell: Data security involves national security issues, EE: Senior associates help partners with day-to-day case issues regarding the balance of rights over innovation or matter management, including managing discovery, (and the ability of the United States to remain a technol- working with junior associates on preparing high-quality ogy leader), and a host of constitutional issues. In that motion drafts, and participating in negotiations with op- sense, the work we do is very, very important. posing counsel. Senior associates also help partners with pitches, drafting articles, and monitoring legal trends. Marina Gatto: Data security involves helping clients protect their data through the implementation of mecha- CA: What do the junior associates do? nisms such as “privacy by design,” to ensure that data is protected from unauthorized access. EE: Junior associates get involved early with business development, including helping with research for pitches, CA: What do the partners do? drafting articles and client updates, and monitoring cases and legislation to provide insight to more senior attor- Nicola Menaldo: Partners do a mix of business devel- neys on legal trends. Junior associates also are asked to opment (delivering CLEs, working on pitches, attending help with day-to-day management of document review conferences, etc.) and legal work. The latter, which is the teams, with key legal research, and with preparing the majority of work for most partners, primarily involves di- first draft of motions. recting and discussing strategy, for example on weekly team calls, reviewing and revising work product, inter- JS: Our junior associates are supervised closely by more facing with the client, preparing for and taking deposi- experience lawyers but generally work one-on-one with tions, and providing written advice and advice over the the clients, take primary lead on drafting motion papers, phone. and appear and argue motions in court. This specialty area is somewhat unique to our firm and provides a great JS: Our overall goal is for all group members to be data training ground for the various areas junior associates Practice Areas Practice security and privacy generalists (meaning they can issue- need to develop. spot data security and privacy issues) who have specific specialty areas. So we have lawyers with deep expertise MG: Junior associates will undertake any research nec- in FTC investigations, state AG investigations, class ac- essary to help answer a client’s questions and inform the tion litigation, data security and data breach preparation partner and senior associate they are working with of any and response, HIPAA, COPPA, CCPA, technology trans- recent changes to the law that may be relevant. The as- actions and other privacy transactional issues, responses sociate may also draft recommendations for the client or to governmental or other third party requests for infor- suggested next steps for compliance with the law. mation, product launch, etc. The partners are generally

221 www.chambers-associate.com Privacy and data security – Perkins Coie

“...the opportunity to work in such an CA: Describe your latest case: what was the client’s exciting, fast paced and evolving area problem? What was your role? How did you spend your of the law which is constantly changing, days? which challenges me to be a better NM: I am currently handling a TCPA case involving novel lawyer.” issues about what constitutes telemarketing, a case involving claims under Washington’s Gambling Recovery CA: What kind of work is involved day to day? Statute, and several cases under Illinois’ Biometric In- formation Privacy Act. I generally work on strategy and NM: There is a good mix of team and solo work. As a draft and edit briefs. On one case, I am working a lot with counsel, some days are consumed with meetings and experts and data to prepare for opposing class certifica- phone calls and other days I can work on my assignments tion and on another case I am responsible for managing alone in relative peace. discovery.

JS: It runs the gamut. In the past several months, for ex- EE: My newest case is a data breach class action that’s ample, I have met with state legislators regarding need- just getting started. I’ve been involved with the partners ed amendments to the CCPA, spoken to the California in developing case strategy, working on preparing a draft attorney general staff regarding interpretation of the motion to dismiss, conducting a factual investigation (in- CCPA, argued a motion with potential witness testimony cluding gearing up for witness interviews), and thinking related to the Stored Communications Act and sought through an initial discovery plan. and obtained a stay pending appeal of the decision in that matter, counseled a large number of clients on the JS: My latest case involved a felony murder trial where CCPA, TCPA, and other privacy compliance matters and the defendants sought user documents from social me- led the defense of several large class action and smaller dia providers. The Stored Communications Act makes litigation matters. The work is dynamic and interesting. it unlawful for providers to produce those documents, which should be obtained from the actual users, but CA: What are the highs and lows? the defendants argued that their constitutional rights trumped the Stored Communication Act. My role was JS: The highs are that we have a great group of collabo- taking the lead on drafting the briefs, arguing before the rative privacy experts and we work with a great group of trial court, and preparing witnesses for an evidentiary clients, from Fortune 50 companies to small startups on hearing. emerging data security issues. Another high is that the developing nature of technology and data security law MG: One of my recent cases involved counseling a cli- provides many opportunities for creative solutions to ent on the impact the California Consumer Privacy Act thorny problems. This can also be a low in the sense that (“CCPA”) may have on a program they were considering complicated issues can be frustrating but the good far implementing. I conducted an in-depth analysis of how outweighs the bad. the CCPA may apply to this program, based on the types of personal information the client was likely to be col- NM: Highs are finishing and filing high quality briefs, be- lecting and sharing. It was very exciting to be able to cause of the team work involved at the end and the fun of be creative in thinking of various approaches the client making and refining good legal arguments; and working could take to minimize their exposure under the CCPA. Practice Areas with and being part of a team of lawyers that I truly respect and admire and who all know and think about privacy issues in sophisticated ways. The main low is always “In general, consumers, regulators, feeling like there isn’t enough time in the day. legislators, and judges are all scrutinizing privacy and data security EE: For me, the highs involve delivering a win for the cli- more closely than they ever have ent, however the client defines a “win.” That could be a legal victory like winning on a motion or convincing a reg- before.” ulatory to close an investigation without enforcement, a negotiated victory like a workable consent decree or fa- CA: What are the current trends affecting data secu- vorable settlement, or an operational victory like launch- rity? ing an information security program. The lows generally involve long hours on tight deadlines. NM: In general, consumers, regulators, legislators, and judges are all scrutinizing privacy and data security more closely than they ever have before. And companies are

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collecting more personal information than ever before. CA: What personal qualities make a good data security As a result of both of these trends, companies face in- lawyer? creasing exposure on the privacy and data security front and need more legal help to navigate changing and new NM: Interest in technology, ability to navigate uncertain- laws and defend themselves in the event of litigation. ty and a changing legal landscapes, creative thinking. At our firm, you also need humility, curiosity, and the ability MG: The biggest trend that is affecting the privacy and to work well on a team. data security space is the passage of the California Con- sumer Privacy Act. The CCPA is one of the most sweep- EE: Matters can tend to move very quickly, so being pro- ing and strictest general privacy and data security law active, thinking ahead, and keeping organized are all in the country, and it creates new rights for California important attributes. At the same time, being flexible consumers and imposes corresponding obligations on enough to roll with the punches and adapting strategy businesses based both inside and outside of California. to fit facts as they’re learned and developed also is important EE: All 50 states and the District of Columbia now have data breach notice statutes, but a new wave of state leg- MG: Data security and privacy lawyers must be able to islation led by the California Consumer Privacy Act will evolve and adjust along with the constantly shifting pri- lead to new statutory causes of action for data breaches. vacy landscape.

CA: What would you say the future of data security practice looks like? “Practicing at Perkins Coie really allows lawyers to operate at the cutting edge JS: This is a growth area in the law. Data security will con- of this type of practice.” tinue to be a more and more important issue for more and more companies. Laws will continue to be passed and in- terpreted, and breaches will continue to expand and to CA: What makes the field of data security unique? be more sophisticated. Could you describe the opportunities unique to Per- kins Coie? MG: The future of the data security practice is going to be exciting. I think we are going to see the passage of NM: The practice is unique because it involves both litiga- new privacy laws at both the state and potentially the tion and counseling. This is beneficial because it allows federal level which will continue to transform how com- lawyers to stay abreast of the most recent challenges panies do business. and laws that companies are grappling with, while also engaging in the exciting world of litigation and gaining EE: One thing’s for sure: companies are going to need the experience and ability to advise clients that comes data security lawyers for the foreseeable future. with that.

CA: What’s the most interesting data security matter Perkins Coie represents nearly all of the household you’ve worked on? names in the technology industry on privacy and security issues, so practicing at Perkins Coie really allows lawyers NM: I work on a number of facial recognition matters and to operate at the cutting edge of this type of practice. find them all to be fascinating. The work is always changing, never boring, and always challenging. EE: I worked on a really interesting FTC investigation looking into alleged vulnerabilities in devices manufac- EE: At Perkins Coie, our clients range from the most so- tured by an Internet of Things company. phisticated technology companies to small companies seeking guidance on setting up a basic security pro- Practice Areas Practice JS: One of the most interesting matters I worked on was gram and incident response. This means that not only do one where a customer of a client had used the same you get to work with industry-leading attorneys on the login and password for the client’s website as it had for most cutting-edge data security issues, but you also get a different website that had experienced a data breach. hands-on experience starting at a junior level to work A malicious party then used that login and password to with clients and build your own chops. access the customer’s information on the client’s website. Getting to the root cause of the event took time, and JS: The field of data security is unique because it is con- investigations regarding such causes are usually done on stantly evolving, both in terms of law and technology, and very shortened time with lots of pressure. it matters to everyone. The opportunities unique to Per-

223 Privacy and data security – Perkins Coie www.chambers-associate.com

kins Coie include our strong collaborative culture, both EE: For data security in particular (more than privacy in as a fi rm and within our group, which means that clients general), having a basic level of technical competence get effi cient advice from the best lawyers to render it and understanding will probably be helpful in under- and our terrifi c client relationships with many of the ma- standing your client’s questions and needs. It’s even more jor players and start-ups alike. helpful to become comfortable and develop instincts regarding a wide range of legal areas, especially statutory CA: What can students do to prepare themselves for a interpretation, federal courts, and tort and contract law. career in data security? MG: To prepare for a career in data security and privacy NM : Take classes on privacy and data security; read students can stay up to date on current and future pri- TechCrunch and other technology-related publications; vacy laws. It is fast paced and evolving area of the law, so and consider learning computer science or engaging any ways that students can stay up to speed on current in extracurricular activities that enhance your ability to privacy trends will help them in their future careers. communicate with tech-focused clients and understand technical issues that regularly arise in these cases.

Authors

Erin Earl Jim Snell Marina Gatto Nicola Menaldo Counsel in Seattle Partner in Palo Alto Junior Associate in Counsel in Seattle Palo Alto Practice Areas

224 Privacy & data security www.chambers-associate.com

Privacy & data security

In a nutshell Realities of the job The issue of privacy and data security is one of the most • Given that this area affects all types of businesses, pressing and controversial in our digital age – so naturally you’ll “work with a whole range of clients,” Callahan tells it’s a growth area for lawyers. The law in this area is still us. Her practice covers everything from “the entertain- relatively new, but nonetheless it struggles to keep up ment industry to government contracts. I like the variety with rapid technological advances. Lawyers advise cli- and the fact that I deal with six to 12 clients a day.” ents on the collection, use and transfer of personal infor- • On the reactive side of the practice, the pressure can mation. Multinational companies, developers of products be high. “The matters that arise are a really big deal and public bodies are all under pressure to comply with for the client; it’s like heart surgery,” says Doug Meal ever-changing regulation that protects the consumer. of Orrick. “Dealing with a major security breach feels truly life threatening for the client so it’s really rewarding when, first of all, you get engaged by a client who needs “Cybersecurity is going to be a hot help in this scary and stressful situation.” However, this button issue.” – Mary Ellen Callahan can also “put significant stress on you; the clients are really counting on you and you feel tremendous respon- Attorneys might focus on compliance and take a proac- sibility for them.” tive approach, ensuring clients adhere to their obliga- • This burgeoning area of law provides plenty of hands- tions to protect personal information either from out- on experience for young lawyers. Callahan tells us: “I side attack or from misuse by employees. Alternatively, have a colleague working on international data transfers lawyers might assume a more reactive role and deal and another on mobile data protections. They will work with data breaches, as well as contentious matters and somewhere between one and four hours and then meet investigations conducted by data protection authorities. to talk about the issues. They might participate once a This part of the practice is also known as the enforce- week in client calls to follow up on aspects and do a sta- ment side. tus check. When we are in reactive mode we need a more rapid pace, perhaps with hourly calls. On a breach, for The rise of social media companies, smart technology example, we need to be all hands on deck.” and data transmission means that lawyers in this field • With new territory comes the need for creativity. “This are increasingly relevant. A growing awareness of what body of law barely existed 10 years ago,” says Meal. “On is being shared between organizations has prompted every matter you’re dealing with legal issues that have the need to protect not only personal data but intellec- never been dealt with before. There are not enough prior tual property too. “Cybersecurity is going to be a hot but- decisions out there to provide all the answers for issues ton issue,” according to ex-head and founder of Jenner that might arise. As a lawyer you have an opportunity as & Block’s privacy team Mary Ellen Callahan. “There is you’re not bound by a whole body of established law; you more interest than ever in keeping information protected.” have the ability to argue and have a role in making the law.” • Although a technical background “can be useful and give you some credibility,” it is not necessarily required What lawyers do according to Callahan. Meal agrees: “Prior experience • Advise companies on data transfer and storage. in computer technology is valuable but certainly not es- • Advise companies on risk factors that make them vul- sential.” nerable to cyber attacks. • Variety is key in the beginning, says Meal: “I would want • Negotiate settlements for clients accused of neglect- the opportunity to do both compliance and enforcement ing their legal obligations. for some period of time. I would be looking hard for a law Practice Areas Practice • Litigate on behalf of clients whose data has been firm that would give you a chance to do this in the area – breached. it’s quite important.” • Are sometimes employed on a ‘just in case’ basis to take action in tricky situations. • Work with engineers and developers to ensure that “The matters that arise are a really software adheres to regulatory obligations. big deal for the client; it’s like heart surgery.”– Doug Meal, Orrick

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Rankings in Chambers USA the subject before the United States Senate Commit- tee on Commerce, Science, and Transportation. • The Federal Trade Secrets Act may produce some Top Ranked interesting cases brought by companies whose trade Morrison & Foerster Orrick, Herrington & Sutcliffe secrets have been stolen. On a related note, lawyers will see an uptick in “drafting employment contracts to Highly Recommended comply” to ensure employees don’t pass information Alston & Bird on to competitors, according to Lori Lesser of Simp- Arnold & Porter son Thacher & Bartlett. Cooley • In 2019, Europe started implementing the General Covington & Burling Data Protection Regulation: new legislation that fo- Debevoise & Plimpton cuses on consumer control over personal data. GDPR Gibson, Dunn & Crutcher affects the US too, as domains outside of the EU that Latham & Watkins process data of people inside the EU must comply with Perkins Coie Ropes & Gray the regulations. Sidley Austin • The absence of such legislation in the US on a federal Venable level means states have started to legislate locally. Ex- WilmerHale amples include the New York SHIELD ACT, the Nevada Wilson Sonsini Goodrich & Rosati Privacy Law and the California Consumer Act (CCPA). • The Nevada Privacy Law was the first state privacy law For more detail on ranking tiers and locations, visit to come into play after GDPR. California started to en- www.chambers.com force the California Consumer Act (CCPA) in January 2020, allowing California consumers to see any personal data a company has saved or shared. The con- Current issues sequences for noncompliance or violation can even June 2020 result in jail time. • “The FCC is now under Republican control, so you could • Biometric identification (BI) is becoming more com- see a significant rollback of what was previously put in monplace, and used increasingly as a security meas- place,” Meal explains. One example is proposed chang- ure in mobile phones. The technology’s coming on fast es to US net neutrality laws, which come with data pri- and improving all the time: the chance of somebody vacy implications. It’s possible that internet providers breaking into your phone because of a rogue Apple could charge additional fees for consumers to keep Touch ID match is 1 in 50,000, while in the newer Face their browsing private, and monitor internet users ID it’s just 1 in 1,000,000. Taylor Swift hit headlines in more closely to calculate what other products they’d 2018 when it emerged that her security team had used be interested in. facial recognition technology to monitor fans during • In September 2018 the state of California passed a net her stadium tour. neutrality bill, only to be sued by the Department of Jus- • In February 2020, Clearview A1 suffered a catastrophic tice shortly after. The California Consumer Protection data breach. The facial recognition company had its Act is expected to come into force in 2020, with other entire client list stolen, comprising 2,200 organizations states expected to follow suit with similar legislation. such as the FBI and retailers like Walmart. A hacker The alleged Russian hacking of the Democratic Na- managed to access the client list and leak private data;

Practice Areas • tional Committee highlighted new priorities for law- Clearview’s database stores billions of images, scraped yers in the cybersecurity field. “Good data governance from sites such as Facebook, LinkedIn and Twitter. and hygiene” will become increasingly important fac- • The advance of technology – especially ‘smart’ devices tors, says Mary Ellen Callahan. “It’s very sobering,” she – has already caused a number of privacy concerns. adds, pointing to the rising stakes of cyber attacks: One example is the rise of voice activated AI assistants “CEOs have been fired over breaches that occurred due like Amazon’s Alexa, which continue to raise privacy a lack of data security.” Questions of data security have concerns for consumers, and in 2019 it emerged that been repeatedly raised during the election process for Google’s Nest home security system contained a hid- the Democratic Party’s 2020 candidate for President. den microphone despite it not being listed on the de- • Following the allegations brought against Cambridge vice’s specs. Analytica (the analytics firm was accused of harvest- • As artificial intelligence (AI) gathers pace, so does its ing Facebook users’ personal information to target threat to cybersecurity. According to a Webroot report them with political ads), social media sites’ data pri- 91% of security professionals believe that hackers vacy measures have been called into question. In April could launch more sophisticated cyber attacks than 2018 Facebook founder Mark Zuckerberg testified on previously by using AI.

226 Private equity – Goodwin www.chambers-associate.com

Private equity – Goodwin

The private equity industry supercharges companies’ operations and puts money in the pocket of investors. Goodwin’s lawyers explain that work in this area brings much more than financial profit.

Chambers Associate: What does Goodwin’s private eq- MK: We have a long list of prominent private equity firms uity practice do? as clients, mainly in the middle market. Some of our clients are industry focused, such as technology or health Michael J. Kendall: We are the leader in middle market care funds, while others provide stage-specific capital buyouts and growth equity transactions, representing like growth equity funds. a large variety of private equity sponsors as well as the companies that they acquire and invest in. Increasingly, our work is cross-border as we represent our clients “We like to get to know the globally from our 13 offices around the world. management and essentially become an external general counsel.” Joshua Klatzkin: We really have a market-leading buyout and growth equity practice that includes over 250 lawyers. From the perspective of numbers, we are one of the JK: It’s a diverse and dynamic set of clients. While we’re largest private equity practices. In fact, Mergermarket’s sector agnostic, many of our clients are investors and Global & Regional Report ranked Goodwin among the top portfolio companies operating in the technology, health- two advisors, by deal count, for global buyouts and exits care services and financial services verticals. Our prac- in 2018. We have a great franchise and are continuing tice is focused primarily – although not exclusively – on to grow. the middle market, broadly defined, although it has grown over the years. We are happy with where we are, Milena E. Tantcheva: We cover the lower to upper mid- and we are definitely the market leader in this vibrant dle market for funds making private equity investments. and expansive space. We truly shine in the true middle market, and this year we were recognized as Mergers and Acquisitions’ 2018 MT: The client base is probably 70% private equity spon- M&A Mid-Market Law Firm of the Year, which is further sors and 30% portfolio companies that are owned by the evidence that our efforts in this space are paying off. same private equity funds. Our business model is different compared to our peer firms – I feel that is what sets us Alese Bagdol: Around a third to 40% of our work is apart. Once we assist a private equity fund with buying a bread and butter M&A and leveraged buyouts. On the target, we like to get to know the management and es- buy side, we help our clients with target acquisitions that sentially become an external general counsel to not just expand their portfolios. We also spend a lot of time on the private equity firm, but also the company that was large cap growth equity deals, where investments are the target. This scope means we get to deal with the ac- made in growing companies that are a few years away quisition and related closing as well as the post-closing from being ready to go public with an IPO. integration, including employment agreements and any litigation-based work. Mirela Hristova: We cover all types of funds, including venture capital, infrastructure and hedge funds. In terms CA: Could you describe your role as partner within the Practice Areas Practice of fund size, we cover small funds raising $50 million private equity practice? right up to billion-dollar funds. Over the last seven years, I have seen tremendous growth in both the private equity MK: I act as both a co-head of the group and a partner and funds practice areas. practicing in the group. As a partner, I am part of the effort to grow and expand our practice across the globe. CA: What does Goodwin’s private equity client base My job involves being on the lookout for growth oppor- look like? tunities for our group, collaborating with partners to execute work with a broad range of clients that fund new businesses and seeking to expand our practice through

227 www.chambers-associate.com Private equity – Goodwin

lateral partner recruiting. I also look to develop and grow plex, multi-faceted transaction with a sale price of $760 our associate talent and make them the best private eq- million. My role on that – as it is in all transactions – was uity lawyers they can be. to assist the client throughout the early stages, where I worked on the letters of intent and advised them on the structure of the transaction, as well as legal aspects to “Together with one of the heads of the consider. I managed the due diligence elements of the private equity practice, I spearheaded a transaction and negotiated the acquisition agreement. I sponsorship program for women which also managed the other professionals on the transaction consists of pairing more senior partners and got the deal to close successfully. with junior associates.” “Gibson is an iconic brand – it still JK: I’m responsible for maintaining relationships with makes guitars in America, so there was leading private equity firms and overseeing deal ex- a very nostalgic element to the deal.” ecutions. I serve as a strategic adviser for private equity funds and senior executives in portfolio companies – that’s a big part of what we do. JK: Last week I closed a leveraged buyout of a growing hardware and software company that serves the MT: My focus is a little different as a debt finance law- government services sector. I led a large deal team that yer within the private equity group. What I do is focused structured, negotiated and executed the transaction. We on the leverage piece of a leveraged buyout. I assist our now represent the target company and will work with clients in procuring financing; I start with producing the management and their new investor to help execute its commitment letters and work on a matter all the way up growth strategy. to drafting the definitive documentation for the financing itself. I also work closely with the CFOs of the acquired MT: I think the deal that has been the most interesting businesses to make sure they understand and comply recently involved our client, Gibson Brands, who I guided with their financing arrangements. through a restructuring. I actually started working with them back in 2012, when they first completed a high On the firm administration side, I have recently become yield debt issuance. Unfortunately, for several reasons, the new hiring partner of the Boston office. I believe it is Gibson was no longer a viable enterprise. My role as a important to note that I am a woman in my thirties, and the finance partner was to put in place exit financing that role I now perform has traditionally been held by those enabled them to emerge out of bankruptcy. who have a different kind of profile. Together with one of the heads of the private equity practice, I spearheaded a I helped them get through the restructuring and come sponsorship program for women which consists of pair- back out at the other end – hopefully as an enterprise that ing more senior partners with junior associates. This was will continue to grow as a performing business unit. Gib- designed to help junior women lawyers blaze an easier son is an iconic brand – it still makes guitars in America, path forward throughout their career at Goodwin. I am so there was a very nostalgic element to the deal. The also an active mentor and advisor to associates. work was interesting because exit financing is a very different type of financing to advise on. CA: Could you describe your role as counsel within the Practice Areas private equity practice? CA: What is the most challenging aspect of your practice area? MH: As a new counsel, it’s been interesting working with clients at a higher level, as well as leading knowledge JK: Private equity is a highly competitive space for our cli- management and mentoring. In terms of growth within ents, so there is the challenge of trying to position them my role, I have increasingly been working more on secur- to succeed in competitive situations. We take a pragmat- ing client relationships, both new and existing ones. I’ve ic approach to risk in the context of business. Ultimately, also been involved in a lot more management and coordi- we serve as business advisors who know about the law, nation of large teams and providing review assignments. rather than siloed legal advisors. It is also competitive in the sense that there are plenty of other firms nipping at CA: What was your role on the latest matter you our heels all the time. We’ve become more of a target as worked on? we have grown. However, we continue to stay focused on what we have to do and encourage the formation of MK: I can give you an example of a company sale we did strong client relationships across all levels at the firm. on behalf of one of our private equity clients. It was a com-

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MH: Every day we read around 30 market updates be- MH: I think we may see a closer convergence between cause tomorrow will be a whole new day. With the grow- the private equity, tech and life sciences fields in the ing volume of work, we have seen Goodwin become a near future. Our private equity clients have been invest- global leader in private equity. The majority of our attor- ing more into these areas. What that means for us as a neys are now overseas. The sheer volume of deals we ad- firm, in the future, is that we will be in a unique position vise on has changed my work, as has the more complex to capitalize on that convergence as we have great ex- nuances of the matters we handle. When you go up into pertise in both the technology and life sciences sectors. the billion-dollar fundraisings, there are so many logistics to consider with sophisticated investors coming in as CA: What personal qualities make for a good private well as sovereign wealth funds. There are lots of com- equity lawyer? ments and questions. I would say that learning how to handle the complexities in tandem with the volume of MK: It is important to have a mindset and an approach work is challenging, but it is a great learning opportunity that allows you to work well with a large variety of cli- and an opportunity for growth. ents, especially as you encounter different kinds of personalities in this space. It is also important to know a lot CA: What is the most rewarding aspect of your prac- more beyond what you do as a corporate lawyer in your tice area? everyday job. A private equity lawyer needs to be familiar with many different areas of legal and business practice JK: Alongside the relationships we’ve developed with our in order to advise clients holistically. clients, we really feel as though we’re in a partnership and part of a team here in our group. It’s about really be- JK: Most importantly, you have to be interested in both ing in the trenches together. The other rewarding part the business and the people. You have to be able to invest would be the platform that we have here at Goodwin, in a client relationship. You need to dig into their business which is deeply invested in growth. to see what drives them. There is no rule book when it comes to working with private companies; you need to be flexible in structuring solutions that help your client win “We had a market that sputtered to a and execute the deal. It’s fast moving, high stakes, with a stop during the last quarter of 2018 lot of moving parts, but it’s also a lot of fun. with no high-yield issuances.” “Within the first couple of years, make AB: For me, the most rewarding aspect is getting the op- sure you know how you fit into the portunity to work with incredibly driven and intelligent bigger picture of the transaction.” people at the firm, as well as with clients that are at the pinnacle of their respective industries. We are able to learn so much just by working with them; we always take MT: A large part of it is about embracing the entrepre- away lessons from our clients that we are able to apply neurial spirit of the work. You have to grow the pie – not to future deals. just eat an institutional pie! We take pride in constant growth, which involves growing both our existing clients CA: What are the latest trends and developments in and our new client base. the private equity space? AB: Being creative, practical and demonstrating a real MK: A significant trend has been the emergence of a aptitude for business are all important factors in this sellers’ market. M&A matters have become friendly for practice. Anyone can learn the law, but to truly succeed sellers – at the moment there is little post-closing liability as a private equity lawyer one must fully understand the for the seller. However, if the economy turns and we have objectives of your clients and show you can help them a slowdown, the market could cool off. If that happens, achieve their business objectives in accordance with the Practice Areas Practice the terms will swing back in favor of the buyers and that law. degree of post-closing liability will also change. CA: What can students be doing now to set themselves MT: We had a market that sputtered to a stop during the up for success in this area? last quarter of 2018 with no high-yield issuances. That trend has been interesting. As a result, we are now see- MK: Try to seek out business education alongside your ing lenders claw back some of the power that was previ- legal studies. Consider cross-registering with a business ously in borrowers’ hands. school or take classes in accounting and corporate finance. It is possible to learn these disciplines on the job

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as a lawyer, but it would make your life a lot easier if you CA: What is unique about Goodwin’s private equity do so before arriving. practice?

JK: Law school doesn’t prepare you as much for this area MK: One thing we talk about a lot internally is Goodwin’s as you would think. While you need to know a lot of law, position as the only firm in the world where a leading pri- day to day what we do is a lot more action-oriented and vate equity practice sits alongside a globally-dominant less “legal” than many other disciplines. The key to suc- technology practice. Every day we reap the benefits of cess is to have a genuine interest in both business and this. When our private equity investors realize that we people. Especially within your first few years in a firm, be have this advantage, they come to us with their technolo- a sponge – absorb as much information and experience gy-related matters. I also think that the size and breadth as you can out of every deal. Never work for anyone who of our practice is notable. All ten of our offices have a pri- isn’t willing to invest in you, your understanding of deals vate equity practice, and we opened our thirteenth office and your development as a lawyer. in Santa Monica, California in 2019, which will also have a private equity focus, so we are constantly putting teams Within the first couple of years, make sure you know how together across the globe to get transactions done. With you fit into the bigger picture of the transaction. During over 200 lawyers in our private equity practice alone, we the first three years at Goodwin, we allocate junior asso- have a significant advantage. ciates 50 hours (on average) of shadow time, which is a non-billable opportunity to learn from senior partners by MT: I think that because we aren’t heavily reliant on any attending their meetings and calls to get a higher-level particular institutional clients, Goodwin lawyers are able understanding of the practice – if you come to Goodwin, to establish client relationships as early as our second take advantage of that and soak up as much as you can. year at the firm; we can own those relationships and grow them, right up until partner level. We don’t have to wait to develop those relationships. I believe that this is “All of our offices have a private equity what makes us unique. It’s a huge selling point for us. practice, and we opened our thirteenth office in Santa Monica, California in AB: For me it’s the way all of our practice areas interact. 2019.” We have a world-class technology practice and we work closely with our colleagues in it. We help that team with M&A deals and technology companies that are at a later MT: I always say that there isn’t much you can do to stage in their development. We have a very strong set of prepare. I would advise students to go on as many trips specialists throughout the firm. Our tax attorneys are the abroad as you can before graduating. Enjoy your life as best in the nation and help us structure our deals in the much as you can. Corporate work in general (and espe- most tax-efficient way possible. Phone calls to our tax cially finance) is more of a ‘learn by doing’ kind of prac- specialists are usually the first that we make! The sys- tice. You’ll receive plenty of training when you start as a tem of working closely together allows us to produce the junior associate. If you don’t know the answer to some- optimal structure for both our clients and all the parties thing, there will always be someone who would love to involved. teach you. I think that law school often teaches us how to be a litigator, but not really any one kind of corporate JK: One thing that set us apart is that we have a very flat lawyer. structure, including among the partners. That’s empow- Practice Areas ering for partners and associates alike. As a group, we AB: Read the Wall Street Journal. We also post a lot of are extraordinarily collaborative and really function as a articles related to private equity on goodwinlaw.com, team. I’m based in DC, but 50% to 60% of the deals I work which contain information about the deals we do. Read on are with people in San Francisco, so we’re very much anything that allows you to understand what is happen- client driven – not office driven. ing in the industry. Other than that, try to take practical negotiation classes or anything that helps you to develop Overall, Goodwin is a place where you can truly be the the skills you will be using on the job. Of course, there owner of your own destiny. No one will do it for you, but will be learning on the job, but Goodwin’s partners are you will have plenty of support to carve your own path. I always available to help you master the skills and guide have been here for 14 years, and I can say that there is you along – as long as you have an interest! no better place for associates to begin their career. Your future is in your hands and we can provide the momentum behind it.

230 www.chambers-associate.com Private equity – Goodwin

Authors

Michael J. Kendall Joshua Klatzkin Milena E. Tantcheva Alese Bagdol Mirela Hristova Partner Partner Partner Associate Counsel Practice Areas Practice

231 www.chambers-associate.com Private equity

Private equity

In a nutshell (rather than being purchased directly from the fund it- Private equity and investment companies operate funds, self.) Closed-end funds and their managers must be reg- which are pools of money from investors. Private equity istered with the Securitites and Exchange Commission. firms use this money to buy other companies or assets and sell them on for a much higher price. Often, the firm REITs – or Real Estate Investment Trusts (or Funds) use also takes a sizable sum of bank debt to make the pur- investors’ money to invest in mortgages and properties. chases – this is known as a leveraged buyout. These are publicly traded.

Lawyers who specialize in investment management play two roles: they help to actually form the fund in the first What lawyers do place (these are usually structured as limited partner- • Advise clients on how to structure new funds. ships) and help the firm negotiate how the investors can • Help private equity firms negotiate the terms on which donate their money. Their second function is to represent investors contribute their money. the fund when it buys and sells the investments. • Act for the private fund when it buys and sells its investments. Venture capital is a part of private equity that concerns • Assist clients throughout the fund-raising process. investors putting money into startups, with the hope the This includes the preparation of offering materials, the startup will eventually be sold or taken public. These are preparation of partnership agreements, advising on high-stakes investments as startups don’t always suc- and documenting management and compensation ar- ceed, but it can return very high profits. To reduce the rangements, and closing fund formation transactions. risk, investors usually put forward smaller sums of mon- • Draft the numerous organizational documents neces- ey over a short period. sary to form an investment fund, including a private placement memorandum, a limited partnership agree- Securities and assets need to be managed if the inves- ment (if the fund is a limited partnership) or an oper- tors want to achieve their end goal. This is where invest- ating agreement (if the fund is a limited liability comment management comes in. Investment management pany), and investor subscription agreements. lawyers often specialize in a particular area, but they all • Conduct diligence and negotiate contracts. advise on funds’ formation, structuring, regulation and • Inform and advise clients on the constantly changing taxation. regulatory and compliance issues arising under US and international securities, tax and ERISA laws. A hedge fund is a private fund. They invest in a variety • Provide day-to-day advice with respect to issues such of markets in the hopes of returning a profit to the in- as performance and advertising, and brokerage and vestor, irrespective of the state of the market. The more portfolio trading practices. successful hedge funds are typically clued-up on derivatives. Realities of the job Practice Areas Can funds club together? Yes. These are called mutual • Funds lawyers often work for clients in very small funds. These collective funds pool money from several teams, meaning there is the chance for even the most investors to buy securities. Mutual funds are often sold junior associates to gain great experience. “When you to the general public. start out, you will work on private placement memos, draft key documents and review the transfer agree- Investors occasionally want to add to or withdraw from ments,” says Bruce Ettelson of Kirkland & Ellis. “In the fund. Funds that enable this are known as open-end funds, you may negotiate with hundreds of parties at the funds – both mutual and hedge funds fall under this cat- same time so typically you get the chance to work in ne- egory. Investors usually buy shares in the funds from gotiations as a young associate.” the fund itself, rather than buying shares from fellow • Structuring funds requires an intimate familiarity with shareholders. The fund will issue an unlimited number of relevant securities and investment company rules. Un- shares throughout its lifecycle. The opposite of an open- derstanding and being able to apply knowledge of key end fund is a closed-end fund. Here, the fund issues legislature, such as the Securities and Exchange Com- a limited number of shares, and issues them all in one mission (SEC) guidelines as well as federal and state go. The shares are usually traded between the investors laws, is a vital skill.

232 Private equity www.chambers-associate.com

Rankings in Chambers USA • “I would recommend taking a securities regulations course,” says Lisa Schneider of Fried Frank. “Having a basic understanding of securities law is an important Top Ranked foundation for the practice of asset management and Fried, Frank, Harris, Shriver & Jacobson Goodwin other areas of corporate law.” Kirkland & Ellis • “A key personality trait often overlooked that you need Latham & Watkins in this practice area is emotional intelligence – people Proskauer Rose skills. One of the things I love about this practice is that Ropes & Gray in fundraisings I don’t really do one-on-one negotiations, Simpson Thacher & Bartlett and in terms of large private securities offerings you will Willkie Farr & Gallagher be dealing with numerous different law firms. Finding a common denominator and getting everyone to agree to Highly Recommended pretty much the same terms means that being able to Choate Hall & Stewart read, understand and gently move people helps tremen- Cleary Gottlieb Steen & Hamilton Cooley dously,” explains Jordan Murray of Kirkland & Ellis. Davis Polk & Wardwell • “Attention to detail and the ability to take a step back Debevoise & Plimpton and understand the big picture” are key attributes for Dechert success, according to Lisa Schneider. Foley Hoag Gibson, Dunn & Crutcher Gunderson Dettmer Stough Villeneuve Franklin The state of the market & Hachigian Private equity has enjoyed a meteoric rise over the past Paul, Weiss, Rifkind, Wharton & Garrison few years. So far recruitment numbers into this practice Weil, Gotshal & Manges have remained stable under COVID-19, reflecting a slow White & Case WilmerHale in growth rather than a downturn. But as investment markets start to feel the pinch and leveraged finance For more detail on ranking tiers and locations, visit becomes more risk averse and expensive, investor confi- www.chambers.com dence and appetite for transactions will subside and the PE market will take a hit. Cash-rich opportunistic investors may take advantage of the lower company valua- • Setting up funds also requires a significant amount tions at this time of crisis, however. of tax, ERISA and industry knowledge. Funds lawyers often work in close collaboration with their tax and fi- REITs: with real estate being a transactional market de- nance colleagues to realize the best value for clients. pendent on individual wealth, cashflow and the availabil- • Private placement memoranda must contain risk fac- ity of finance, we expect to see a flatlining in this sector tors and material disclosures about the investment until the pandemic is under control. The lockdown itself manager and the strategy to be employed by the fund. has seen companies innovate and invest in home work- • ‘Investment Advisor’ is the industry term for people ing, and companies have found that a lot of precesses who advise on financial investments, like stockbrokers. can function remotely. So in the long term it’s likely com- They are regulated by the Securities and Exchange panies will try to make a permanent saving on their real Commission. These advisors have to register with the estate costs and invest in remote-working tech instead. Securities and Exchange Commission and state-spe- This means coronavirus could be responsible for a more cific securities regulators by filling out an ‘ADV Form’. permanent shift in urban real estate usage, where office This form asks about things like the advisor’s fees, em- space is given over to residential space, or office space ployees, potential conflicts of interest and the types adapts to a more flexible, transient workforce akin to the of service the advisor offers. Think of it as a Facebook WeWork model. And so the investment landscape may profile page. Clients are entitled – and encouraged – to shift for the long term. Practice Areas Practice ask for a copy of the ADV before working with them. They then become known as ‘Registered Investment Advisor’ and are good to go. Advice from the gurus of private equity • Being responsive to client needs and understanding and investment management the time-sensitive nature of fund organization is es- Bruce Ettelson, head of the private funds group, Kirk- sential. “A lot of work involves helping clients to under- land & Ellis: stand what the market is and how they can best use such “A real benefit of funds work is that you meet very senior information. As private funds attorneys, we often play a people at the clients early on in your career and become a strategic counseling role,” says Bruce Ettelson. general corporate counsel to those clients. You’re able to

233 www.chambers-associate.com Private equity

represent clients from cradle to grave. You’re not only doing Jordan Murray, private equity partner at Kirkland & El- the transfers, but also helping them with reports, regulato- lis: ry compliance, structuring transactions within a fund’s per- “I really view myself as a commercial business lawyer who mitted transaction parameters and other issues. A wealth does everything for these private investment firms other of challenges will come up over ten years of working with than their acquisitions and dispositions. We handle their a client. It’s a very dynamic and challenging practice. The private securities offerings – which could be viewed as work doesn’t end with structuring and closing a fund.” the sexy part of the job – and deal with a whole range of projects, including opening non-US offices, high-level per- Lisa Schneider, corporate partner, focused primarily on sonnel changes, firm restructurings and liquidity events, the structuring and representation of hedge funds and securities filings, investor reports and communications, other alternative investment products, at Fried Frank: incentive arrangements and regulatory and compliance issues, which have become ever more burdensome.” “One of the great things about this area of law is that the role of a junior associate is not that different from that of a “For me the real reward is that our clients are so easy to senior associate or partner. In many fields, junior associates work with. So many of the folks I work with are so entrepre- are often relegated to lower-level tasks, such as diligence, neurial and smart and grasp onto issues and concepts so and are not exposed to high-level deal negotiations. Juniors quickly that it really is quite fun. They are also the type of in this practice really get exposure to the whole picture. people who recognize the good work and loyalty we bring Transactions are leanly staffed, so that junior associates to the table – they let you know they appreciate that. For are able to be involved in all aspects of a transaction, in- most of my clients I feel like I’m an extension of their organ- cluding drafting and negotiations.” izations. When I speak of my clients it’s about ‘we’. We enjoy our clients’ successes and, thankfully with less frequency, “The private fund space is dynamic and is continuously suffer and fight through their challenges as well.” evolving. As the client businesses and products adapt to changes in the market, our practice must change and evolve as well. This is what keeps the private funds practice both challenging and rewarding. It’s great to be at the cutting edge of the industry.” Practice Areas

234 Product liability www.chambers-associate.com

Product liability

In a nutshell Realities of the job Product liability involves personal injury or property • Mass torts typically include some form of consolida- damage litigation arising from alleged design and manu- tion or aggregation of the claims, ranging from a class facturing defects, or information/warning deficiencies, in action – in which plaintiffs have significant issues in products. Litigation can consist of individual cases aris- common – to a federal multidistrict proceeding coordi- ing from one-off injuries, though in recent years much nating all the cases for pretrial purposes. of it has been conducted through mass torts. Mass torts • Cases are heard all across the country, though plain- comprise class actions and/or multiple related individual tiffs may like certain jurisdictions better than others cases brought by plaintiffs. Most cases within a mass for tactical reasons. These include East Texas, Atlantic tort do not usually go to trial as they tend to be resolved County in New Jersey, and Philadelphia. The ‘bank dis- early through mediation or settlement. trict’ in Los Angeles is popular for its history of award- ing multimillion and billion-dollar verdicts. It has been Product liability lawyers also advise on how to avoid described by advocates of tort law reform as “judicial litigation, since clients are increasingly interested in hell on earth.” prevention and mitigation of the costs and risks of sig- • Not all cases are tried the same way. There are a variety nificant product liability litigation. Attorneys are also of different trial models that judges are experimenting often required to advise on related, nontraditional prod- with, including the bifurcated, reverse-bifurcated and uct claims, such as government investigations, which bellwether models. Depending on the model, different frequently arise alongside private claims. This quasi- strategies will be needed, and will sometimes require criminal aspect involves defending the client against a mock jury exercise to see what will work best. At- suits filed by state attorneys general and investigations torneys can suggest alternate trial plans, though the conducted by the Department of Justice, often simulta- judge has the final say. Once the trial has begun, it is neously. difficult to change how it is tried, though with mass tort, which involves many cases, it is possible to try The major industries that see the lion’s share of product iterative cases differently. Judges experimented ex- liability suits are tobacco, pharmaceutical, consumer tensively with the thousands of cases in the fen-phen products, chemicals and medical devices. BigLaw firms litigation in the Philadelphia courts. normally defend the manufacturers of the products. • The main drivers of complex product liability litigation are the business and strategic decisions made by the plaintiffs’ Bar, which do not necessarily involve pure What lawyers do scientific analysis of a product. • Meet with company witnesses to put together the • Plaintiff lawyers jump from product to product and company’s defense. industry to industry, and try to apply the same mod- • Fact investigation and discovery – find out what actu- el to different cases. The tobacco industry has often ally happened. seen plaintiffs’ innovations before any other, whereaf- • Product investigation – get to know the product. ter plaintiffs will experiment with those approaches in • Choose and prepare experts; arrange for experiments different industries. if necessary. • Many clients work extensively with the Food and Drug • File motions under the Frye or Daubert doctrines to Administration (FDA), so current FDA employees can- dismiss inadequate plaintiffs’ experts. not be used by the defense as expert witnesses, due • Write briefs on evidentiary, class action and dispositive to the conflict of interest. Instead, attorneys will work motion issues, as well as legal analysis. with retired FDA employees to learn about the regula- Practice Areas Practice • Take and defend fact and expert depositions. tory and approval processes. • Argue cases before juries. • Much of the work done preparing for trial will turn out • Manage post-trial steps. to be for cases that never make it to trial, since most mass torts are resolved before then. But attorneys do not know which of the 20,000 to 30,000 claims filed will actually be tried. There is, however, a winnowing process whereby judges eventually select a smaller pool of cases to be tried.

235 www.chambers-associate.com Product liability

Rankings in Chambers USA • The FDA Reauthorization Act of 2017 extended the amount of time drug and device manufacturers have to report product malfunctions, from 30 to 90 days for Top Ranked possible safety issues that haven’t yet caused serious Arnold & Porter Covington & Burling harm. The change has garnered criticism for poten- Dechert tially increasing the risk to patients who use or come Gibson, Dunn & Crutcher into contact with certain medical products. However, Kirkland & Ellis the FDA maintains that the emphasis on patient safety Skadden, Arps, Slate, Meagher & Flom & Affiliates is still preserved via measures including the 30-day reporting limit on issues that have already caused se- Highly Recommended rious harm or have been encountered with any product Dykema Gossett PLLC that has been on the market for under two years. Goodwin • In 2018, California was the first state to implement Greenberg Traurig, PA regulations on ‘Internet of Things’ (IoT) devices – physi- King & Spalding Mayer Brown cal devices connected to the internet. As ‘connected Morgan, Lewis & Bockius devices’ are classed as physical objects as opposed to Nelson Mullins Riley & Scarborough technology, this could affect product liability claims. O’Melveny & Myers This is key when considering the rise of digital health Orrick, Herrington & Sutcliffe technologies and the use of AI in healthcare-related Perkins Coie products, like wireless medical devices. Reed Smith • Consumer fraud class actions continue to be on the Sidley Austin rise in venues across the United States, particularly in Venable California. These actions tend to be filed when plain- Weil, Gotshal & Manges tiffs’ counsel allege that “defendants mislead consum- For more detail on ranking tiers and locations, visit ers as to the benefits of their products,” explains Mi- www.chambers.com chael Davis, former head of Sidley Austin’s product liability and mass torts practice. These actions often arise when a product “claims to be ‘natural’ or have a • There is a large amount of routine paper and electronic specific health benefit, or when there are technical is- discovery required, though many firms use staff and sues with labeling.” contract attorneys to do this job. • Some frequently named defendants, in addition to the • You don’t have to have a background in science to be traditional consumer, food and pharmaceutical com- a product liability lawyer, though to be a successful panies, are “energy drink manufacturers who allegedly one you will have to learn about areas outside the law fail to adequately label their products, helmet manufac- like engineering, medicine and science. You will also turers, and NFL franchises for concussion injuries play- have to be able to communicate complicated scientific ers allegedly suffered over time,” according to Michael ideas to a judge or jury in a clear and simple fashion. Davis. • You may work with some of the leading scientists and • The opioid crisis in the US, with opioid-based medica- doctors in the country and the world. tion having been over-prescribed in recent years, has • The job often involves extensive travel for trials and led to a significant rise in overdoses. State and local meeting with experts. governments continue to seek reimbursement for the Practice Areas • Most product liability work is domestic. health costs from opioid use. Claims have included negligence, public nuisances, and violations of federal and state racketeering statutes. Current issues • The advent of ‘innovator liability’ is a contentious area. June 2020 According to Paul Boehm, partner at Williams & Con- • The product liability market has historically remained nolly, this has been driven “by plaintiffs’ lawyers’ desire quite distinct in different jurisdictions, compared to to circumvent the Supreme Court’s decision in Mensing. other markets that have long been more globally inte- Since plaintiffs, under Mensing, cannot sue a generic grated. However, the globalization of product liability drug manufacturer for failure to warn, plaintiffs’ attor- seems to be on the rise recently. For instance, clients neys have advanced the theory that the ‘original innova- don’t sell to a single region as often as before, and tor’ of the product, rather than the manufacturer of the as such firms with global and/or cross-jurisdictions product plaintiff actually used, can be liable under state- practices and resources are becoming a more popular based ‘failure to warn’ claims. This theory would repre- choice for product liability cases. sent a fundamental change in some basic principles of tort law. Three state courts have allowed ‘failure to warn’

236 Product liability www.chambers-associate.com

cases founded on the theory of ‘innovator liability,’ but Advice from top product liability most courts continue to reject it.” High courts in Califor- lawyers... nia and Massachusetts have both allowed some form Harvey Kaplan, partner and chair emeritus of the phar- of innovator liability, but this has not led to a rise in maceutical and medical device litigation division, Shook, these cases in these states. On the other hand, trials in Hardy & Bacon: Idaho and Delaware recently ruled against holding an innovator accountable for injuries. “Thorough preparation is the key. You have to dedicate • The development of driverless cars has generated new yourself. Turn over every stone and develop the drive to nail queries for the practice area – does an accident involv- down the facts, which sometimes means – lo and behold! ing one constitute a product liability case, or is a crash – you’ll have to get out of your office and interact with peo- the fault of the, for want of a better term, ‘driver’? Cur- ple. The facts are all-important.” rent consensus suggests this will indeed be a product liability issue, but the conundrum demonstrates how “An understanding of the science involved is paramount technology can evolve faster than the law surrounding when you’re dealing with pharmaceutical and medical de- it. Questions about culpability are only starting to be vice litigation. You have to educate yourself.” addressed: in an incident in March 2018 in which a pe- destrian was hit and killed in Arizona by a self-driving “As a junior associate you’ll be working with busy partners Uber, it was uncovered that the ‘backup’ driver was who may be very experienced but don’t know all the details watching a TV talent show at the time of the crash. about a particular case. It’s a great opportunity to make • 3D printing is leading to similar deliberations about yourself indispensable by being the person with the in- product liability issues and who is culpable if there is depth knowledge of the documents.” an issue. • Litigation surrounding the topic of vaping and e-ciga- Will Goodman, member, Watkins & Eager: rettes is expected to grow; there have been a number “I’ve been defending pharmaceutical and chemical compa- of deaths and illnesses allegedly related to the devic- nies most of my career. I have enjoyed learning about sub- es. Some claims focus on the product liability aspect jects I never thought I’d be interested in – such as geneti- in terms of defective e-cigarettes leading to injuries, cally modified rice or the metabolism of the liver.” while some focus on the potential misleading marketing of the products. “Defending big companies at trial is an exceptional challenge – I’ve been able to work with some top national and international firms along the way and to try cases outside my home state. If you want a more regular lifestyle, you might consider a practice area other than trial work, where you have some control over your schedule. In product liability we just do what we have to do. My record is 47 consecu- tive days away from home. There are a lot of long hours, and a lot of time and effort goes into preparing and trying complex cases.”

“Teamwork is so important now. Clients rarely hire just one firm and I’ve been fortunate to be part of virtual firms in several major litigations. A spirit of cooperation and a controlled ego is required. Clients nowadays are impatient with a personality that doesn’t mesh well with others.” Practice Areas Practice

237 www.chambers-associate.com Project finance – Milbank

Project finance – Milbank

From desert solar projects you can see from space to the world’s largest cheese factory – Milbank’s globe-trotting lawyers take you through their complex project finance practice.

Chambers Associate: What is project finance law? interests and on the sponsor side, ensure that the business will be able to be managed efficiently and without Dan Michalchuk, partner: Project finance involves the having to resort to frequent waiver/consent requests. development and financing of infrastructure, and spans many different and diverse industries and countries around the world. It focuses on the financing of a spe- “In the morning, I may be working on a cific asset (it could be a solar power plant or a wind farm, construction financing of a wind farm a petrochemical facility, a pipeline, or any number of dif- in Texas and, in the afternoon, I may ferent assets) in which lenders or investors look princi- be working on a mining deal in Latin pally to the revenues generated by that asset for the repayment of the loans that are provided by banks or other America.” financial institutions for the asset’s development. This type of structured finance is deployed most commonly DM: Given the cross-border nature of our practice, associ- in the development of large infrastructure projects and ates will be involved in not only the negotiation and draft- the exploitation of power, energy and natural resources. ing of the New York law governed documentation, but will also be expected to review and comment upon the Our clients are a mix of established institutions such as documentation being drafted by attorneys located in each The Export-Import Bank of the United States, Google, other jurisdiction applicable to the transaction. We don’t GE, Citibank, Vale, Credit Suisse, Goldman Sachs and just deal in paper, however. We are also advocates, even First Solar, as well as newer startup developers. though we’re not litigators. In-person meetings are a common feature of our deals as, even in a world where video- CA: What do associates do? conferencing is a widely used tool, our clients often prefer to get together to hash out deals. Associates might find Genevieve Fox, associate: Junior associates are often themselves in a large conference room in many different tasked with preparing and maintaining closing check- locations around the world assisting in that process. lists, which are used to track each component of the deal that needs to be completed in order to reach the finan- CA: What do partners do? cial closing. Junior associates also sit in on conference calls, coordinate and consult with local counsel, special- DM: Partners usually lead a team involving a senior and/ ists and technical experts (such as engineers or insur- or mid-level associate, and a junior. Our partners are typi- Practice Areas ance specialists) as necessary throughout the trans- cally hands-on, but delegate responsibility to associates action, and prepare and review schedules and exhibits depending on the associates’ skill level. Associates learn to documents and ancillary documents. Mid-levels and a lot of what they need to know on the job, so it’s not unu- senior associates are often responsible for drafting and sual for associates to be taking the lead on calls or meet- negotiating the financing and security documents, lead- ings – whether it’s leading negotiations for more senior ing calls, and reviewing junior associates’ work. Project associates or running a checklist call for more junior as- finance associates also conduct diligence for each trans- sociates. Partners are also entrepreneurial in our prac- action and prepare diligence reports for our clients that tice group, and often lead the charge on client develop- flag key issues and advise on mitigating material risks. ment – whether it’s putting together pitches for new work or socializing or meeting with clients outside the office. Fernando Capellão, associate: At a high level, the work in our practice involves understanding how the businesses CA: What are the highs and lows of working in this that we work with operate and their goals and the risks practice area? inherent to them. This allows us to structure transactions that, on the lending side, adequately protect financiers’

238 Project finance – Milbank www.chambers-associate.com

Timothy Fitzpatrick, associate: One of the highs is that “A project finance attorney trains on every day is different. In the morning, I may be working the job, and the learning curve is steep on a construction financing of a wind farm in Texas and, in but exhilarating.” the afternoon, I may be working on a mining deal in Latin America. You are always learning something new and, if you can handle it, you are given greater responsibility. CA: How is the increase in renewable and clean energy affecting the projects market? GF: What I like best about the practice is that it is tremendously dynamic – every deal offers something novel, and TF: It is a very exciting time to be a projects lawyer prac- given the scope of our work there are always new chal- ticing in renewable energy. Technological innovation, tax lenges and room for personal and professional growth. I subsidies, consumer demand and evolving clean energy also enjoy the tangible nature of our work, knowing that standards have been major drivers in the market. While the work we do contributes to the development of a pro- tax reform has created headwinds for the renewables ject that will ultimately bring something – be it cheaper sector in the past, it is likely the sector will adapt most and cleaner sources of energy, new infrastructure, or quickly to any future changes in tax law by developing jobs – to other people’s lives. Because the projects we new financing structures that will support the industry’s work on are complex, when it comes to closing a deal, the substantial capital requirements. process is often quite demanding, with a large volume of documents and questions being sent between the vari- CA: How can students and junior associates keep up- ous legal and commercial teams as everyone works to- to-date with the market and industry trends? gether to get everything into final form. FC: There are a number of specialized publications and CA: What factors are driving the sector? project finance-focused events and conferences. As an associate, the opportunity to join client meetings and DM: There are many different factors that affect our business development efforts, including pitches, also al- work. The first factor is the price of commodities. For ex- lows you to be exposed to the ‘behind the scenes’ discus- ample, when prices for natural resources such as gold, sions about future business trends and areas of concern. copper, silver or other commodities are high, we usually see an influx of mining projects around the world. Conversely, when the price of natural gas is low, we see “We once were even involved in the larger numbers of projects that need cheap natural gas, construction and financing of the such as gas-fired power plants, petrochemical facilities world’s largest cheese factory!” and liquefied natural gas export terminals, where natural gas is super-cooled to allow it to be loaded onto massive ships and sent around the world. Currently, after many GF: There are a lot of great resources for this. To name a years of downturn, commodities are rising again, and the couple: Latin Finance is a great resource for those inter- mining, LNG and petrochemical markets are back, caus- ested in learning about or staying up to date with what is ing a significant build-out in those assets. happening in the Latin American project finance space, and SparkSpread puts out daily blasts that highlight Legislation also shapes our practice. Due to govern- some of the bigger deals and players in energy finance. ment incentives over the past ten years, there has been an explosion of renewable energy projects, and we have CA: Where can new associates expect to be in five developed one of the most prominent renewable energy years? practices in the world, from massive utility-scale solar projects in the desert that are so large that they can be DM: Although law school helps to teach a young law- seen from space, to domestic rooftop solar projects. yer how to think, a project finance attorney trains on the job, and the learning curve is steep but exhilarating. Practice Areas Practice TF: One interesting development is the diversity of capi- From starting fresh as a first year, an associate will gain tal sources funding projects. While commercial bank knowledge, responsibility and expertise quickly, and by debt was traditionally the main source of financing in the fifth year will be leading major transactions and reg- this market (and continues to play a major role), we are ularly interacting with clients and opposing counsel (al- seeing the increased involvement of institutional inves- though this direct interaction starts almost immediately). tors seeking long-term, low-risk, fixed-income products Our teams are lean at Milbank – a structure that lends to match the long-term nature of their liabilities. Private itself to everyone having responsibility for a piece of the equity has also recently raised significant funds to invest puzzle that is a transaction, and quick learning. in the power and energy sector.

239 Project fi nance – Milbank www.chambers-associate.com

GF: Associates who fi nd themselves wanting to move law, business and fi nance. It is a program that is unique out of BigLaw after a handful of years practicing project to Milbank, and one that associates consistently praise fi nance have a range of options to choose from. A num- for not just what they learn but also the fun they have. ber of my colleagues have found fantastic opportunities Milbank@Harvard is also great because it brings to- working at private equity fi rms and banks, and others gether everybody in each class year from across all of have gone in-house at solar and other energy-develop- Milbank’s offi ces, so it provides us with an opportunity to ment companies. Project fi nance also cuts across vari- meet our colleagues from around the globe. ous legal fi elds – touching on fi elds as diverse as environmental and regulatory law, to bankruptcy, mergers and acquisitions, and other forms of fi nance – and can thus “Associates never know when they may be a great launching off point for other legal jobs as well. need to travel to Brazil, Chile, Colombia or somewhere else for last-minute CA: What opportunities are unique to Milbank? meetings!” DM : We are a very diverse practice group and in order to stay nimble and fl exible – regardless of what the economy CA: What is your advice to students interested in this is doing – we practice in a wide variety of industries. These area? range from power projects powered by conventional means, like natural gas, to a cutting-edge renewables DM: In law school the only relevant course for our prac- practice where we regularly work on a wide range of wind, tice (probably) is secured transactions, so you should solar and biomass power plants. Occasionally, we also are take that, but otherwise in your search for fi rms make asked to apply project fi nance principles to other indus- sure you are looking at the fi rms with top project fi nance tries such as the construction of new satellite constella- practices, but also ones with a diverse practice just in tions. We once were even involved in the construction and case you fi nd out that your interests are elsewhere. fi nancing of the world’s largest cheese factory! Project fi nance attracts people who are interested in international work, who may have some language skills The international part of project fi nance is another rea- (although I don’t!), and who have some interest also in in- son why it’s such an interesting discipline. We regularly frastructure, development and energy – these are things work on infrastructure projects around the world, and of- to stress when you are interviewing. ten in less developed economies, as those are often the places where additional infrastructure is most needed. GF : I recommend that students read up on industry As a result of our international projects, there is often trends and check law fi rm websites to see what transac- travel involved – associates never know when they may tions fi rms are working on. There is no better way to learn need to travel to Brazil, Chile, Colombia or somewhere project fi nance than by practicing it, and fi rst-year as- else for last-minute meetings! sociates are not expected to have a working knowledge of the fi eld before joining the group. What makes junior GF: Beginning in their fourth year, Milbank associates associates stand out is often attention to detail, a drive to spend a week at Harvard for an intensive training pro- learn, a good attitude and the ability to take ownership gram that focuses on developing skills that cut across over discrete tasks.

Practice Areas Authors

Dan Michalchuk Genevieve Fox Fernando Capellão Timothy Fitzpatrick Partner Associate Associate Associate

240 Real estate – Adam Leitman Bailey www.chambers-associate.com

Real estate – Adam Leitman Bailey

It’s the law of the land, which means there’s a lot to learn for anyone considering becoming a lawyer in this area. Adam Leitman Bailey’s dedicated real estate attorneys tell us about the challenge of keeping up with ever-evolving laws; how the bustle of New York City presents all kinds of litigious and transactional opportunities; and why it’s vital to channel your inner bulldog when negotiating...

Chambers Associate: What does real estate law cover? CA: What does a senior associate do? JW: More experienced associates, depending on the file, Danny Ramrattan, associate: Simply put, it is all about can control his or her own cases, using paralegals and the land. Real estate law falls into two general categories newer associates for ministerial work and any case law – litigation and transactional. Each category has numer- research needed. This can include strategy, drafting, ous subsets. Litigation attorneys handle disputes among court appearances, depositions, and client reporting. people, such as between a landlord-tenant, mortgagor- mortgagee, and neighbors. Transactional attorneys com- CA: What does a partner do? plete deals – an example would be the purchasing of a RS: The same as associates except, generally speaking, house or condominium unit. partners will delegate due diligence and investigative (time consuming, research based) type work to associ- CA: What does a junior associate do? ates, in order to focus more on analyzing associates’ Rachel Sigmund, associate: Adam Leitman Bailey, PC findings and recommendations and communicating with does not formally differentiate between ‘junior’ and ‘sen- clients of his or her department. ior’ associates (there are just ‘associates’ without any official distinction for level). Associates are expected to JW: It is the responsibility of the partner to make sure handle all aspects of a client’s account in consultation that any strategy is flawless and that the timeline of the with the assigned partner, if applicable. This includes case is on track. Partners also review and edit all litiga- legal research and analysis; strategy preparation to tion documents before filing, and, of course, keep the cli- achieve clients’ goals and objectives; managing client ents timely informed of all movement. Partners take on expectations along the way; modifying strategies as nec- more of an oversight role in addition to doing papers and essary throughout representation to suit changing facts whatnot. They have more of a leadership role as far as and/or new information received from clients; drafting the practices go. letters, emails and litigation documents; going on meetings and attending site visits and inspections etc... CA: What is the best and worst thing about practicing real estate law? DR: The best part of working in real estate law is the chal- “Associates are expected to handle lenge of it. You will have to be able to navigate between all aspects of a client’s account in the evolution of certain laws but also be able to go back consultation with the assigned partner, historically and try to uncover a hidden gem to win a case if applicable.” for a client. This leads into the worst part of practicing in real estate law, which is trying to stay current and up-to- Practice Areas Practice date on such a large body of law; it is dynamic and ever- Jackie Weinstein, partner: All attorneys at the firm, re- evolving. This could be especially telling if you are at oral gardless of their level of experience, contribute with in- arguments and your adversary springs a new decision take and strategy on every file. Newer associates, how- on you that came out the day before. However, if you are ever, do the bulk of any legal research needed for a file, able to stay on top of the law, and are able to achieve a as our firm uses the lowest billing attorney to complete favorable result, you will feel accomplished knowing that work whenever possible for our clients. you helped a client in such a challenging arena.

241 www.chambers-associate.com Real estate – Adam Leitman Bailey

RS: For me, the best aspect is working in New York City “Being a bulldog is a must for a real which is world-renowned for its real estate market and estate attorney. It is often about the opportunities associated with it. With opportunities money, and the side with the stronger come legal disputes and the need for lawyers. Conse- negotiator for counsel generally quently, Adam Leitman Bailey’s clients’ issues range from ‘typical’ (for instance, the representation of buyers prevails.” and sellers of residential condo and co-op apartments, mortgage foreclosure actions, commercial leasing, land- Joanna Peck, associate: I think that you have to have re- lord-tenant representation, insurance defense litigation ally good interpersonal skills, good client management etc...) to the particularly unique: for instance, the repre- skills and be able to deal with people. If you are not good sentation of a tenants group in the rehabilitation and de- with people it’s not going to work out. velopment of their ‘squat’ building in Manhattan’s Lower East Side to a beautiful newly converted co-op building JW: Being a bulldog is a must for a real estate attorney. wherein the existing tenants group had the opportunity It is often about money, and the side with the stronger to become the owners of their apartments, which they negotiator for counsel generally prevails. formerly lived in as illegal ‘squatters’. All of this comes with being located in New York City. The worst aspect is CA: What are the current issues in real estate that law that client expectations are always extremely high and students interested in the area should be aware of? oftentimes not reasonable in the circumstances. The idea RS: They should be aware of the new tax law changes of ‘managing client expectations’ seems to take on a new and how they are changing the market, pertaining, but meaning with New York City based clients. not limited to, development trends, investment, and sales activities. Also, they should pay attention to the efforts of local government and officials to sustain (and increase) “If you are able to stay on top of the the amount of affordable housing options available law, and are able to achieve a favorable throughout New York City to lower and middle income result, you will feel accomplished individuals and families. knowing that you helped a client in JP: I think in NYC an important issue is adjacent property such a challenging arena.” disputes, whether they’re over construction or noise or neighborly things. In NYC everyone is living on top of JW: The best and worst thing about practicing in real es- each other so the disputes you see are generally be- tate is, ironically, the same thing: it can get personal. tween adjoining owners.

CA: Which qualities make a good real estate lawyer? JW: As the head of the Foreclosure Litigation Depart- DR: I think a good real estate litigation attorney needs to ment at our firm, we are seeing big changes of late with be diligent and aggressive. If you are diligent and well- respect to how the New York courts are handling these prepared you will have a good grasp of the law and be matters. able to argue your point. You also need to be aggressive in making sure you get your point across. These two qual- CA: On that note what does the future hold for the real ities are essential together because if you lack one then estate market? you lack both. You may be aggressive and get your point JP: We only focus on NYC so I can’t speak to the rest of Practice Areas across, but if you are not diligent in learning that area of the country but I think it is going to continue to flourish law then your point may not be accurate. If you diligently and expand, and with that we will see more adjacent know the law, but are unable to get your point across in property disputes. court, then your knowledge of the law is useless.

RS: Quick thinking; easily adaptable to changing expec- “In NYC everyone is living on top of tations and needs of clients; advanced interpersonal each other so the disputes you see are skills; confidence; hard working; diligent in keeping up generally between adjoining owners.” with new trends and changes in the industry; being able to empathize with clients’ feelings more so than other areas of law because the subject matter typically involves DR: The real estate market may take a hit from time to the client’s home and thus becomes very personal to time, but it is always on an upward trajectory. them. RS: There will be a continued decrease in prices for luxury apartments over the next year due to (among other

242 www.chambers-associate.com Real estate – Adam Leitman Bailey

things) the federal tax law changes affecting New York- CA: Describe the opportunities unique to Adam Leit- ers. In addition, we can expect to see higher competition man Bailey (the fi rm). for homes under $1 million. DR : Adam Leitman Bailey has exceptionally talented attorneys, who are the best in their respective fi elds of real CA: And the legal market in relation to it? estate law – all of whom you can learn from. What truly DR : Land is the only thing that they are not making more makes Adam Leitman Bailey unique is that we inspire of – the legal market for real estate attorneys will con- greatness. tinue to grow.

RS : I think there will be increased transactional oppor- “Essentially, at Adam Leitman Bailey tunities and potentially litigation as people try to rescind associates (and not just partners) are purchase agreements. able to serve as their own bosses much of the time.” CA: How can law students brush up on their knowledge of the real estate market? Are there any books/ publications that you would recommend? RS : I would say the responsibility that you get for all as- DR: Finding the Uncommon Deal [written by Adam Leit- pects of your clients’ accounts, which means that you man Bailey] is a great book to read in order to learn about gain tremendous experience in not only the ‘law’ itself real estate transactions. Most people don’t truly under- but also with regards to interpersonal, client interaction stand things such as title insurance, and the book does a and customer service related skills. You develop account- great job of deciphering those misunderstood concepts. ability for your decisions at every level; you learn how to prioritize certain issues and client needs over others; and you hone your ability to manage client expectations. Es- “The real estate market may take a hit sentially, at Adam Leitman Bailey associates (and not just from time to time, but it is always on an partners) are able to serve as their own bosses much of upward trajectory.” the time because there is no ‘true’ hierarchical structure, which translates into a level of autonomy for associates that does not exist at other fi rms. JP : Real estate has a physical element, so it’s not just about reading up on something – it’s about going to see it JP: It’s extremely entrepreneurial here. If you want a and understanding why something is really important to ‘white shoe’ law fi rm – where people give you direction a client. You have to go out and see what is going on with and you don’t have to think – then this is not the place for your clients and observe it. you. You have to be on your feet, be entrepreneurial and not afraid to vocalize your opinions on what you think of a CA: What experience could somebody gain in order to particular matter and where you see the opportunities. It fi gure out whether they might be suited to working as takes a lot of common sense and strategic thinking. a real estate lawyer? JW : The best experience, of course, comes from working JW : Our fi rm is the best in New York for everything real at a law fi rm and learning by hands-on experience. Other estate. Our attorneys are proud to be a part of the fi rm than summering or interning at a fi rm, though, working and, equally as important, are proud of the work product for a title company can also give a student valuable ex- that our fi rm puts out. The fi rm is a family that works to- perience to bring to later work as counsel. gether to get results for its clients.

Authors Practice Areas Practice

Danny Ramrattan Rachel Sigmund Jackie Weinstein Joanna Peck Associate Associate Partner Associate

243 www.chambers-associate.com Space law

Space law

In a nutshuttle What lawyers do Yes, space law is real. And fortunately (or unfortunate- • Harris Wiltshire & Grannis represents satellite and ly?), it doesn’t involve the defense against a potential al- drone companies such as SpaceX (founded by Elon ien invasion. Space law is the body of law that governs Musk), which provides broadband services to users space activity; it encompasses international and domes- around the globe via satellite technology. A lawyer tic agreements and treaties pertaining to areas such as working within the practice at HWG detailed what space exploration, liability for damage and environmen- their day-to-day looks like: “I do a mixture of terrestrial tal preservation. Elements of space law also overlap with spectrum and commercial space policy,” which may other fields of law, like criminal, commercial, insurance initially sound a bit Star Trek, but in reality “it mainly and environmental law. involves being a point of contact for satellite industry clients and drafting comments for submission to the FCC There are five space-related treaties that the US is par- [Federal Communications Commission].” ty to – often referred to as the five UN treaties on outer • HWG managing partner Bill Wiltshire explains the space. The treaties are comprised of the outer space types of challenges space law attorneys are facing treaty, the liability convention, the registration conven- in today’s ever-changing world: “Lawyers are having to tion, the return and rescue agreement, and the moon think through a lot of issues the world is only just start- agreement. These five treaties deal with issues such as ing to see.” He adds that “the various issues involved in- the non-appropriation of outer space and the preven- clude the potential for satellites to collide in space. How tion of harmful interference with space activities and can a regulatory regime manage such issues?” resources.

Space law attorneys advise clients on legal matters such Realities of the job as the financing of space assets and the launching of Space law is literally rocket science. Well, kind of. Due to satellites. They also provide guidance on the regulation the technical nature of space law matters, attorneys will of satellites and associated frequencies, and monitor find themselves working with relevant experts on various space law legislation and regulation. issues. Lawyers in the field can expect to:

Space law is not widely available on legal courses, as • Advise on the financing of satellites; act as counsel to space legislation is only just starting to take shape. This lenders and satellite owners in relation with project fi- might make it hard for law students and juniors to get nancing or construction. the experience in the area that would help them bag a • Advise cable and telecommunications clients on legal permanent job in the area. However, space and satellite matters, such as space insurance and security inter- law often intersects with telecommunications law, which ests in telecommunications equipment. is much more available for those starting out. Aspiring • Work on various commercial contracts for satellites, space law attorneys may therefore wish to try their hand satellite constellations, launch services and ground at telecom work first. stations. These can include the likes of space and sat- Practice Areas ellite procurement and services contracts. • Support clients in multijurisdictional insolvency and “The bread and butter of space law restructuring proceedings. is the licensing and compliance of • Work on litigation and arbitration matters, such as dis- satellites. We represent satellite space putes over space and satellite assets. station operators at the FCC [Federal • Provide legal advice on insurance policies and the regulation of satellites and associated frequencies. Communications Commission] to • Work on IP matters, which can involve assisting clients help them get their licenses. There with patents, trade secrets, copyrights and trade- are several rules the licenses have to marks. comply with, such as spectrum use or spectrum sharing.” – Bill Wiltshire, Managing Partner, Harris Wiltshire & Grannis

244 Space law www.chambers-associate.com

Rankings in Chambers USA suing NASA in order to establish ownership of some moon dust. • On a broader note, there are questions of morality and Top Ranked responsibility around the potential for space mining Covington & Burling Harris, Wiltshire & Grannis too – not just questions of ‘who owns what?’, but also Jenner & Block those such as ‘should we own this?’ Perhaps budding Latham & Watkins space lawyers should also take a philosophy class. • In April 2020, President Trump signed the executive Highly Recommended order on ‘Encouraging International Support for the Akin Gump Strauss Hauer & Feld Recovery and Use of Space Resources.’ As the offi- Arnold & Porter cial White House website (whitehouse.gov) states, the Cooley order encourages “partnership with commercial entities Morgan, Lewis & Bockius to recover and use resources, including water and cer- Perkins Coie tain minerals, in outer space.” The order also highlights Pillsbury Winthrop Shaw Pittman Sheppard, Mullin, Richter & Hampton the international context of “uncertainty regarding the Sidley Austin right to recover and use space resources, including the Wiley Rein extension of the right to commercial recovery and use of Willkie Farr & Gallagher lunar resources…” • Space tourism is an increasing area of business. For more detail on ranking tiers and locations, visit Though space tourism company Space Adventures www.chambers.com has sent fewer than a dozen private citizens into space, there are huge plans to expand this new version of ‘getting away from it all.’ Elon Musk’s SpaceX Houston, we have some current issues is planning on taking a handful of tourists on the orbit June 2020 of a lifetime around Earth. Virgin Galactic was plan- • The shaping of current outer space legislation was ning on taking its first tourist ship out in 2020 (though done so with space understood as something explored they have delayed the program to use their resources exclusively by government institutions. Now that there to make breathing apparatus for COVID-19 patients). are new private space companies, both space explo- Blue Origin is also planning on offering customers the ration and space tourism require further regulation in chance to get a few minutes of space time for a ru- both the private and public sectors of legislation. mored $200,000. • In August 2019, Anne McClain, a NASA astronaut, was • Entrepreneurs are increasingly working on projects accused of breaching the law in space while aboard to build space colonies and entire cities. Although the the International Space Station. Allegedly, McClain il- aforementioned Outer Space Treaty bans countries legally accessed her ex-partner’s bank account while from appropriating the moon and other celestial bod- on board the international space station. This is the ies, the treaty doesn’t mention private citizens. first allegation of a crime taking place in space, raising • In May 2019, Jeff Bezos, founder of Amazon and owner questions as to who will govern the realms of space of Blue Origin (a rocket company) gave a presentation when the exploration and habitation of space becomes in Washington on his idea for the future of humankind more commonplace. Making things easier for now, the in space. Bezos posited that space colonies will be ex-partner in question was charged in 2020 with fabri- built by future generations, comprising artificial set- cating the alleged space crime. tlements in orbit, home to as many as a million people • The question of who owns lunar material has gained each. The company’s website states that their vision “is traction over the past decade. In 2011, various media a future where millions of people are living and working outlets reported on NASA’s intervention when a space in space,” to “tap its unlimited resources and energy.” engineer’s widow tried to sell a moon rock, as all such • Will space be militarized? Historically, the interna- material is classed as property of the federal govern- tional Outer Space Treaty of 1967 decrees that the Practice Areas Practice ment. Congress subsequently issued a law in 2012 moon and other celestial bodies must only be utilized that clarified which space objects could be privately for peaceful purposes. As of 2019, 132 countries were owned; it did not cover lunar material and rocks and either party to or had signed the treaty (with Slovenia hasn’t been updated since. In 2017, The LA Times re- being the latest to sign in February 2019). However, ported that the widow in question was told by the US in December 2019 at the NATO summit, leaders of Ninth Circuit Court of Appeals that she could sue for 29 countries came together in London and discussed the manner of her detainment. In addition, in 2018, the the militarization of space. It was reported that Jens media reported that a Tennessee-based woman was Stoltenberg, NATO’s secretary general, talked of space as an “operational domain” and highlighted the

245 www.chambers-associate.com Space law

possibility of protecting satellites. However, NATO has of the Armed Forces.” Furthermore, Trump initiated a made clear that it has no intentions of weaponizing $738 billion defense bill for US military superiority in space. space. Trump described space as “the world’s newest • President Donald Trump reaffirmed his commitment war-fighting domain” and added that “America’s superi- to the idea of an American ‘space force’ during his ority in space is absolutely vital.” The Space Force will speech at a signing ceremony in December 2019. The protect US assets in space, such as communication proposed force would be similar to the Armed Forces, and surveillance satellites. As of April 2020, the Space Trump said: “I am hereby directing the Department of Force has 16,000 personnel (primarily from the Air Defense and Pentagon to immediately begin the process Force), as well as 86 fully-fledged lieutenants. necessary to establish a Space Force as the sixth branch Practice Areas

246 Sports & entertainment www.chambers-associate.com

Sports & entertainment

In a nutshell Sports Sports and media and entertainment are distinct yet • Assist with contract negotiations, be they be- overlapping areas of the law; some aspects of their tween clubs and sportspeople, agents and players, practice – contracts law, for example – are common sporting institutions and sponsors, broadcasters to both. Whichever strand you practice, one thing is for and sports governing bodies. certain: the work is incredibly varied. Neither of these • Handle varied employment and immigration issues. specialisms has its own distinct branch of law. Rather, • Defend sportspeople accused of doping offences or they involve piecing together elements of a broad range other unsporting behavior. of legal disciplines and applying them to one particular • Advise on corporate or commercial matters like takeo- industry sector. vers, public offerings, debt restructurings and bankruptcies, and the securing and structuring of credit. Sports • Enforce IP rights in the lucrative merchandise market Split between transactional and litigation work, sports and negotiate on matters affecting a sportsperson’s lawyers help out individuals and companies involved in image rights. the sports industry. That involves anything from drawing • Work on regulatory compliance issues within a sport. up player signing contracts, purchasing and selling sta- • Offer reputation management and criminal advice. diums and negotiating branding agreements to litigating • Advise broadcasters and other sports bodies on audio- licensing issues. visual media piracy issues. • Sports-related litigation – anything from athlete con- Media and entertainment tractual disputes to stadium construction and copy- Media and entertainment lawyers provide legal advice right issues. and representation to those working in the entertain- • Advise professional sports leagues, club owners, in- ment industries, including the fields of theater, televi- vestors and other financial institutions on sports-re- sion, music, publishing, gambling, film and digital media. lated licensing agreements, project finance, securiti- The practice has a major fault-line down the middle, zations, and security offerings. with most lawyers falling on either the transactional or • Involved in M&A transactions involving sports-related the contentious side. Many entertainment lawyers hone bodies, and in the purchase and sale of sports teams. one particular specialism – the music industry, for exam- • Advise sports administrators, commercial bodies ple – while others remain generalists. and municipal authorities on hosting major sporting events. • Manage IP portfolios for sports brands. What lawyers do Media and entertainment • Draft and negotiate record, publishing, producer, man- Advice from the top agement, distribution, touring, merchandising, corpo- Bruce Wilson, a senior corporate lawyer at Covington & rate sponsorship, licensing and internet agreements. Burling with expertise in sports law: • Consult with artists, record companies and publishers regarding their financing, entertainment and internet “Probably the most important thing I’ve learnt is that in this strategies, plus the protection of their IP rights. transactional area, there’s industry expertise but not sports • Advise media and entertainment companies on their law per se – it’s not a separate branch of the law. There M&A and merger activities. are very unique issues in antitrust law and competition, but • Provide pre-publication content advice to broadcast- the most important thing to remember is that a transaction- Practice Areas Practice ers and publishers. al sports practice requires you to draw on so many different • Litigate matters including contractual, copyright and areas of corporate work. It’s M&A, financing, IP, media, and trademark, employment, and payment disputes. competition all rolled into one and you have to be comfort- • First Amendment law is a substantial specialism in it- able in each of those areas.” self – advising on issues of free speech, censorship and defamation, among other contentious issues. “Challenges are the rules of the game. In order for sports to be interesting, someone else must be doing the same thing. You can’t have a football game or test match with just one team turning up. It’s a competitive universe, with people

247 www.chambers-associate.com Sports & entertainment

Rankings in Chambers USA “My general advice is don’t load up on entertainment classes at law school – maybe just take a couple of basic classes like copyright or IP. If you want to get into entertainment Top Ranked law, use law school as a time to cover basic solid subjects Covington & Burling Cravath, Swaine & Moore including securities, commercial law and antitrust. There Debevoise & Plimpton will be plenty of time to focus on entertainment later.” Jenner & Block Latham & Watkins Munger, Tolles & Olson Current issues Paul, Weiss, Rifkind, Wharton & Garrison June 2020 Proskauer Rose • Amazon and Hulu presented further challenges to tra- Skadden, Arps, Slate, Meagher & Flom & Affiliates ditional TV players when they launched live streaming Wiley Rein services in 2017. This will have an impact that spans beyond just advertising, as media and entertain- Highly Recommended Akin Gump Strauss Hauer & Feld ment partner Matt Thompson at Sidley Austin tells Cahill Gordon & Reindel us: “Broadcast TV has been declining for a long time – Cooley apart from sports and awards shows. At some point, an Davis Polk & Wardwell entity like Amazon is going to buy the broadcast rights Foley & Lardner for the NFL. When something like that happens, the fu- Gibson, Dunn & Crutcher ture of broadcast TV will be uncertain.” Greenberg Glusker Fields Claman & Machtinger • Technology known as Deepfake uses video and audio Holland & Knight to replicate images and voices of people, and can be Katten used to imitate public figures like celebrities or politi- Kirkland & Ellis cians. Despite being relatively new, the sophisticated O’Melveny & Myers Paul Hastings technology has become almost indistinguishable Sheppard, Mullin, Richter & Hampton from real life. Deepfakes in the future could create a Sidley Austin personalized film experience for example, letting you Vedder Price watch your favorite actor in any film you wish. This Waller would bring up complex legal issues around who gets Weil, Gotshal & Manges paid and whose intellectual property the performance WilmerHale becomes. For trial media lawyers, the technology Winston & Strawn could also be used in more sinister ways – as a tool for blackmail, defamation and manipulation. For more detail on ranking tiers and locations, visit www.chambers.com • New technology presents new threats to the media industry in terms of IP infringement. To take new real- time piracy as an example, we can expect to see more competing in terms of sport, attention and ticket sales. But copyright holders litigating for copyright infringement. competitors on the pitch need to be business colleagues However, the owners of live-streaming platforms may off the pitch.” find an easy escape considering that current US law is still not firm on this point. Another option for copyright Scott Edelman, a litigation partner and co-chair of Gib- holders is to harness new technology to their own ad- Practice Areas son Dunn’s media, entertainment and technology prac- vantage to protect themselves from piracy. tice group: • Sporting regulation is facing changes and challenges in gender equality cases such as Harrison Browne’s – a “From my perspective, I don’t think entertainment law is in- transgender man who played for the National Wom- herently ‘sexy.’ I don’t work with celebrities – I work with stu- en’s Hockey League. In 2017 Browne was left with no dios, networks and music companies, which are corporate choice but to announce his retirement from the NWHL enterprises just like Bank of America, General Motors and to begin hormone replacement therapy. Sporting the Shell Oil Company. Even for those working at boutique regulation, nationally and internationally, means that firms who represent the talent, it isn’t necessarily easy. transgender athletes like Browne are left in a tough Some celebrity clients can be demanding, and frequently spot both legally and personally – either leave the sport need to be pampered. Competition to do entertainment altogether to transition medically, or stay and delay. work is intense, and nobody should get into entertainment • Another significant sporting decision emerged in law thinking it is easy.” 2019 when the International Association of Athletics Federations (now known as World Athletics) ruled that Caster Semenya, the South African 800 m Olympic

248 Sports & entertainment www.chambers-associate.com

champion, will be required to medically reduce her deals. Sports lawyers will be necessary as this evolu- testosterone levels in order to continue competing on tion engrains itself in the mainstream. the world stage. Semenya lost her appeal to the IAAF • Esports remains a hot and evolving industry. Ex- after challenging what she believed to be discrimina- perts forecast that in 2020 the esports mar- tory new regulations that required female athletes ket will amass $1.5 billion in annual revenue. With with DSDs (difference in sexual development) or inter- money predominantly flowing from sponsorships sex female athletes to chemically alter levels of tes- and advertising deals, lawyers across the globe will tosterone through the use of hormones. become increasingly involved with issues relating to • In 2018, the Supreme Court overturned the Profes- sporting governance, broadcasting rights, sponsor- sional and Amateur Sports Protection Act of 1992, ship, advertising, gambling, anti-corruption, and much legalizing sports betting at a national level. This legal- more as the intersection between sport, tech, and me- izes what is estimated to be a $138 billion industry, dia grows. but also throws fantasy sport betting companies like • The Esports Integrity Commission (ESIC) is a govern- DraftKings and FanFuel up into the air. ing body overseeing the integrity of this embryonic • An ongoing legal battle continues to plague the World- industry. The Commission seek to regulate and elimi- Cup winning US National Women’s Soccer Team re- nate all forms of malpractice in the industry, ultimately garding equitable pay. Despite being a far more deco- aiming to preserve sporting integrity in its digitized rated outfit than their male counterparts – the USNWT manifestations. Poland, for example, has expanded le- are ranked first in the world, with four World Cup tro- gal sporting regulations to prohibit doping and other phies under their belt – the debate concerning equita- areas of misconduct in this newly emerging field. ble pay continues. In part due to sponsorship and ad- • Despite there being no sport happening under the cor- vertising deals, the team reportedly earn six times less onavirus lockdown, sport has nevertheless featured in in bonuses than the men’s side, causing the USWNT the news every single day, remarkably finding some- to file a lawsuit against US Soccer seeking to remedy thing to discuss. This offers us some reassurance that the chasm in pay. even under the most extreme conditions, our appetite • The development and influence of women’s sport will for sport remains. A career in this niche area is hard to continue to grow in 2020. Ever increasing exposure get into, but once there it offers some stability. Our re- and momentum will see greater levels of corporate search shows niche areas encourage more long-term sponsorship; marketing geared toward younger ath- commitment from associates. letes; and expanding broadcasting and television Practice Areas Practice

249 www.chambers-associate.com Tax

Tax

In a nutshell to a tax issue that has previously been unsolvable. For “Tax touches virtually every aspect of the econo- example, the tax lawyer will produce a new financial my,” says Leslie Samuels, senior counsel at Cleary Got- instrument that becomes accepted by the market. This tlieb. Accordingly, tax law encompasses a variety of ac- will sometimes prompt the government to review its tivities, from transactional support and structuring to tax regulations. planning and tax controversy. • It’s vital to have an affinity for reading case law and regulations, as this is how juniors will spend some of Working alongside corporate lawyers, tax attorneys their time. They must be able to rationalize their find- ensure that transactions are as tax-efficient as possi- ings and summarize them accurately. ble, whether they’re centered on public or private M&A, • Tax lawyers must have full confidence in their advice. capital markets, investment funds (private equity, REITs The research must be methodical and complete. and mutual funds), joint ventures or partnerships. Tax • In order to ensure that commercial transactions are planning advice requires familiarity with all relevant do- as tax efficient as possible, tax practices work closely mestic and international laws, and it is essential to have with corporate departments and understand the non- an understanding of clients’ overall objectives and the tax issues that drive transactions. A successful tax structuring of their businesses. department can be a useful marketing tool for firms looking to attract new clients. Tax controversy is more of an independent category, cov- • Tax lawyers need to express themselves clearly and ering a range of contentious tax issues. These include concisely. Solid technical knowledge is essential, as tax-based litigation, IRS examinations and tax shelter is the ability to explain technical information to non- investigations. Disputes are usually resolved at the ad- experts. ministrative level. Transfer pricing is also grouped with • Excellent interpersonal skills are a must. Tax contro- tax controversy. versy can sometimes involve liaising with the IRS, and it is important that lawyers be upfront and straight- talking. They may also work with international clients, What lawyers do so cultural awareness is important. • Advise clients on the tax elements of transactions. • Lawyers have the chance to work on a variety of mat- • Analyze cases and regulations to develop a real un- ters, including charity and pro bono. They are expect- derstanding of the tax implications of transaction ed to comment on proposed regulations and may also structures. Findings are summarized as memoranda or give tutorials to colleagues and clients. given through direct counseling. • Tax lawyers sometimes break up their career by • Negotiate terms dealing with the tax aspects of trans- spending time working for the government, notably actions. the IRS. • Draft agreements, especially for M&A and joint ventures, which are particularly tax intensive. An important element is the drafting of tax disclosures. Current issues Practice Areas • Liaise with other non-tax lawyers and clients to ensure June 2020 the smooth running of transactions. • The Trump administration has made tax reform a key • If working in tax controversy, negotiate with the IRS, policy. In 2017 the President signed the US Tax Cuts respond to IRS questions, and draft memoranda and and Jobs Act, cutting corporate tax from 35% to 21%. briefs. This and other measures are intended as a means to encourage the market and stimulate the economy. It allows both US and non-US-based firms to move prof- Realities of the job its earned in the US to other (low-tax) countries. One • Tax lawyers need to keep up with all new develop- interesting fallout from the cuts is that capital ex- ments in both the law and the economy as a whole. penditure has grown for a couple of quarters since This is especially important for a young lawyer, who they were made. needs to build expertise. The law is always changing. • Talks of the ‘Green New Deal’ may lead to increases • By keeping up to date, tax lawyers can become real ex- in taxation, especially to larger corporations, in efforts perts and even innovators within the legal landscape. to reduce carbon emissions and fund other initiatives. With experience, they may be able to offer a solution On the other hand, Trump has signaled intent to im-

250 Tax www.chambers-associate.com

Rankings in Chambers USA

Top Ranked Alston & Bird Highly Recommended Akin Gump Strauss Hauer & Feld Baker Botts Arnold & Porter Cleary Gottlieb Steen & Hamilton Cadwalader, Wickersham & Taft Cravath, Swaine & Moore Cahill Gordon & Reindel Davis Polk & Wardwell Choate Hall & Stewart Dechert Clifford Chance Goodwin Covington & Burling Greenberg Traurig, PA Crowell & Moring Holland & Knight Debevoise & Plimpton K&L Gates Duane Morris King & Spalding Fried, Frank, Harris, Shriver & Jacobson Kirkland & Ellis Gibson, Dunn & Crutcher Latham & Watkins Haynes and Boone Mayer Brown Irell & Manella Morgan, Lewis & Bockius Jenner & Block Perkins Coie Katten Ropes & Gray Milbank Simpson Thacher & Bartlett Morrison & Foerster Skadden, Arps, Slate, Meagher & Flom & Affiliates Munger, Tolles & Olson Sullivan & Cromwell O’Melveny & Myers Vinson & Elkins Orrick, Herrington & Sutcliffe Paul Hastings Paul, Weiss, Rifkind, Wharton & Garrison Pillsbury Winthrop Shaw Pittman Proskauer Rose Reed Smith Schulte Roth & Zabel Shearman & Sterling Sidley Austin Thompson & Knight Weil, Gotshal & Manges White & Case Willkie Farr & Gallagher WilmerHale Wilson Sonsini Goodrich & Rosati Winston & Strawn

For more detail on ranking tiers and locations, visit www.chambers.com

plement even more tax cuts for middle-income people • Oil giant BP took a $1.5 billion charge as a result of the and businesses. The direction this takes will largely tax reforms, which affected its liabilities and deferred depend on the outcome of the 2020 Presidential Elec- assets. In the long run however, like many multina- tion. tional companies, BP expects the new tax regime to • The Organization for Economic Co-operation and De- be positive for its balance sheet. velopment (OECD) has also proposed widespread re- • The IRS has been churning out guidance and new tax Practice Areas Practice forms to international taxation. These include expand- forms to clarify the new reforms, something lawyers ing the criteria for who has a taxable presence, setting and tax advisers will likely be grateful for given the minimum global taxation levels and inventing a new substantial impacts they have. However, this has been class of factors and assets to expand who and what complicated due to a new set of procedures that re- can be taxed. quire the Office of Management and Budget to review • The OECD is also focusing on raising tax revenue from every regulation. This is further exacerbated by the digital businesses based on the location of users. fact new proposed regulations require a public com- There were concerns that this unilateral tax would fall ment period before they can be revised and finalized. disproportionately on large US tech and internet firms.

251 www.chambers-associate.com Tax

• The EU has gotten in on criticism of the reforms, with “To the extent that tax lawyers think they’re just servicing the supra-national body asking the OECD’s forum on the corporate lawyers, it’s a total mistake. The work is so harmful tax practice to review the legislation. The EU much broader than that.” may also file a complaint with the WTO and include the US on a blacklist of tax havens. If the EU gets its way “Keeping up with developments is exciting and demanding. parts of the reform may be repealed or sanctions could There’s so much you have to keep up with every day! But be slapped on the US. that’s how you become an expert, which is one of the attrac- • Globally, there has been more cooperation regarding tive aspects to practicing tax law. You really can become tax havens and information exchange to address the the go-to person who knows everything about topic X.” role of businesses in eroding countries’ tax bases. So far more than 100 jurisdictions have Foreign Account Basil Zirinis, partner, Sullivan & Cromwell: Tax Compliance Act agreements with the IRS, which “Because it’s such a human area of the law, it can be ex- has helped create greater lines of communication be- tremely emotional. Do you leave assets outright? Do you tween the IRS and foreign financial firms. The IRS’s trust your family? There is no right answer. When families offshore voluntary disclosure program allows over- are fighting they want you to help them settle it, but given seas account holders to rectify any tax shortcomings, the emotions and family history it can very difficult. It’s not thus warding off the threat of penalty action. about ‘right’ or ‘wrong’ family members, it’s just that there • The US is the only major economy not to have a value- is often no clear or perfectly right answer.” added tax (VAT) system. However, there is a belief among some experts that a federal VAT system could “Students should definitely take as many tax courses as be and should be introduced in the future. they can in law school, including corporate tax. The more of • Illinois is currently the only state to adopt legislation a background they have in tax, the more helpful it will be.” legalizing and taxing marijuana, though other states are exploring this in 2020. “The broader the courses you take, the better off you’ll be. We do everything from corporate law to litigation in our practice – so the broadest possible academic experience is What top tax lawyers advise important.” Leslie Samuels, senior counsel, Cleary Gottlieb: “It’s important to keep your eyes and ears open to make “An international perspective on the world in general is sure you understand everything about the transaction so helpful, especially because the explosion of wealth is your advice is the most effective it can be.” global. It’s not just about the US and Europe any more. Wealth is increasingly mobile with China, Latin America, “You don’t have to be a math genius to be a very success- etc. all involved. That’s where the most interesting work will ful tax lawyer. You’re dealing more with concepts. We don’t ultimately be for young lawyers, so language skills are ex- prepare tax returns, and we certainly don’t get busy before tremely important.” the tax filing dates.” Practice Areas

252 Technology – Goodwin www.chambers-associate.com

Technology – Goodwin

Goodwin’s specialist tech lawyers tell us all about becoming a lawyer in their fast-paced sector.

Chambers Associate: Which practice areas fall within EMM: One of the main differences is in the outlook of the the technology sector? attorneys involved. From the company’s perspective, at a high level, there aren’t many differences – in both ar- Emma Mann-Meginniss: The technology sector spans a eas, the company is focused on protecting the business. number of different practice areas, from general corpo- From the attorney’s side, there are some significant dif- rate and securities work to mergers and acquisitions, la- ferences, a lot of which are about the relationship with bor and employment, intellectual property law, litigation, the client. I started my career as a litigator, and one of and capital markets. the things I used to hear from my clients a lot was something along the lines of “This has been great, but I hope Jesse Nevarez: At Goodwin, this would mean venture I never have to see you again.” On the corporate (or non- capital, M&A, capital markets (including IPOs and follow- contentious) side, my role is more as adviser – someone on offerings) and a variety of intellectual property mat- my clients want to consult from the beginning, and not ters. Of course, depending upon the company or matter, someone they call as a last resort. we will leverage our labor, employment and tax expertise as well. JN: On the one hand, you can be part of an IPO process, where all sides to the deal (company, underwriters and CA: Does Goodwin have a particular specialism in any their respective legal teams) are looking to present a uni- of these? fied story of the company that will draw great interest from investors. This presents a great incentive to work EMM: Goodwin is a full-service firm dedicated to meet- together. On the other hand, you can find yourself nego- ing our clients’ needs no matter what stage they’re in. We tiating back and forth on the reps and warranties in an pride ourselves on being able to grow along with our cli- M&A deal, where each side has to consider a worst case ents, from the one-person founding team to a company scenario where the parties are arguing in court over the of thousands of employees and offices worldwide. breach of these provisions. In this case, both sides have an increased incentive to draw harder lines during nego- My practice focuses on companies that are in their early tiations. to mid-stage of their life cycles. I work with clients from formation through acquisition or IPO. We have sub-units John Casnocha: On the corporate side we are focused within our larger tech group who are experts in public on building companies, helping clients raise capital, offerings, capital markets, sell-side M&A, buy-side M&A, complete acquisitions of complementary businesses and tax, labor and employment, IP, etc. And of course we have gain liquidity through initial public offerings or mergers. an incredible private equity group that can assist our lat- We are also drafting the contracts that could eventually er-stage clients that make the jump from startup to PE. be the basis for litigation so part of the job is protect our clients from future claims. In litigation, typically the al- JN: Goodwin is one of the leading firms in this practice leged wrong act has already been done thus the work area, with a particular focus on guiding new and emerg- is really to resolve or settle the dispute. At that point, ing growth technology companies through a variety of opposing counsel is an adversary rather than a partner life-cycle transactional events. We also have great ex- and thus interactions are often contentious rather than Practice Areas Practice pertise in guiding investors that wish to invest in or lead productive. the funding in these types of transactions. CA: Which future technologies do you anticipate will be most lucrative for the legal sector? “The technology sector spans a number of different practice areas.” Robert Dzialo: The three that jump out to me are machine learning and AI, cybersecurity and FinTech. What’s CA: What are the differences between noncontentious great about the tech practice is working with clients who and litigious work for the technology sector? find ways to use new trends in the tech field to change

253 www.chambers-associate.com Technology – Goodwin

old industries – many entrepreneurs bring this thinking to meeting, management has the opportunity to provide their lawyers and legal services and look for lawyers who the board with an update on company strategy, product create value by bringing this same innovative spirit back development and anticipated obstacles. We collaborate to the client. with our companies prior to board meetings in an effort to prepare them for what the company should be think- Andrew Pusar: Artificial intelligence. We’ve seen a growing about from a legal perspective, with the goal of having number of companies in this space and the applica- ing management shine in front of the board. By going tions of artificial intelligence are essentially limitless. through this process, we get a view into technological Our companies have developed artificial intelligence and regulatory trends that impact various industries. For solutions for governmental bodies, financial institutions, example, in the last year, we’ve seen an increasing focus health care groups, and Fortune 500 companies, which is on privacy matters given the large number of companies indicative of the large market opportunity. I believe we’ll developing platforms that gather and analyze personally continue to see significant investment in artificial intel- identifiable information. We use these insights to ensure ligence as these companies find new ways to streamline we develop and maintain legal expertise around the lat- and improve the analytic and operational systems of est technologies and trends. their customers. CA: How may working with technology clients differ JN: I definitely see the health and wellness technology from those in corporate or finance, for example? space continuing to grow (with a particular emphasis on wearable technologies). People are increasingly focused EMM: The easiest way to understand the difference on getting enough exercise, eating the right foods and between a typical tech client and a client in corporate having a way to keep track of all of this, and I believe that or finance is to think about the difference between a we have just scratched the surface of this sector. startup in Silicon Valley and an investment bank based in New York. The Silicon Valley startup is founded by a JC: Cryptocurrency and autonomous vehicles. small team looking to raise early capital, hire the right people, figure out exactly how to put their great idea into practice, and grow quickly. The New York based in- “We’re seeing a growing number of vestment bank is responding to market conditions, has a companies in the artificial intelligence team of hundreds of thousands of people, is in the public space, and of course in bitcoin/ eye, and is focused on sustaining shareholder returns. cryptocurrency – that’s been a huge The startup responds quickly to market indications that something is working (or not) and doubles down (or cuts area of growth for our firm in the past the fat and iterates) – which means that their needs, from year.” a legal perspective, are highly dynamic. The bank is making more deliberate choices, evaluating market data over CA: How is Goodwin keeping apace with changes in longer periods of time, and likely not moving as quickly. technology? JN: It can differ because the number of employees may EMM: Our group is really focused on making sure we be smaller. What this means is that almost every conver- have our finger on the pulse of what’s happening with sation that you have will be with a decision maker at your our clients. Part of that is researching and developing client, which in certain cases can speed up the process Practice Areas expertise in burgeoning areas within the technology of a matter. sector (from a legal perspective). In the last year, there has been an increasing focus on cryptocurrency. In prior years, we’ve seen heavy interest in artificial intelligence, “The easiest way to understand the or employment/contractor misclassification issues hav- difference between a typical tech client ing to do with companies like Uber or Lyft. We do what and a client in corporate or finance is we can to get out in front of these issues, but some part to think about the difference between of what we do is experiential – and that’s where the sheer volume of clients really helps. We see the same issues a startup in Silicon Valley and an arise on a regular basis and that helps us counsel our investment bank based in New York.” clients on both the potential solutions that work from a legal perspective and a business perspective. JC: On average, founder clients are younger than banking or finance clients. Many times this is a founder’s first AP: One way that we try to stay ahead of the curve is time analyzing the legal issues that we are discussing by trend-spotting in board meetings. At each board and so they are (i) more receptive and (ii) more appre-

254 Technology – Goodwin www.chambers-associate.com

ciative of your work than other clients might be. In addi- is sometimes knowing what you don’t know, and then tion, clients reach out for more than just legal advice and bringing in the right specialist or partner who has spe- understand that Goodwin has strong insight into what is cific expertise on the area. market in Silicon Valley from a business perspective as well. We have helped shepherd other clients in similar industries and markets from incorporation to IPO or suc- “Working with founders is the most cessful exits and thus they rely on us for business and fun – especially when their companies strategy advice as well, and not just legal terms. Not sur- are gaining steam and go from nothing prisingly, founders are incredibly passionate about the more than an idea to a high valuation company and their business and thus I find it helpful to take a real interest in the technology that my clients are and profitable business.” offering and the problems that they are solving – clients appreciate it when you understand what they are doing CA: What was your role on the latest deal/case you and the purpose behind it. worked on?

AP: We see many personality types, which drives the EMM: I usually have anywhere between ten and 15 ac- way they do business in a more significant manner than tive deals at any given time, so that’s a tough one! I just in a large organization. Businesses are often smaller and closed a large, later-stage financing for a startup com- change rapidly. You come across a wider range of sophis- pany that I helped form. My role on that deal was consist- tication, ranging from college students starting their first ent with my role in other similar deals: I was the primary business to well-seasoned entrepreneurs who have been point of contact for the company, from the term sheet down this path many times before. stage through drafting the definitive documents. Along with the partner on the client team, I counseled the client CA: What are your favorite cases to work on? What is through the proposed changes and terms the lead inves- the hardest part of your role? tor put forth, and also managed the other more junior associates and paralegals on the team. In this case, there EMM: I really enjoy working with early to mid-stage were some interesting business issues that arose dur- startup clients, as well as venture funds that invest in ing the deal that necessitated some more difficult, but those companies. The entrepreneurs are passionate interesting, conversations with the founders, and some about what they want to do, and the questions they ask research into typical market expectations for a company are critical to the development of the company from the like this one. Ultimately, the investors closed on the deal early stages. There’s often some mix of business and law on terms that were favorable to the company. in the services we’re providing, whether it’s counsel on the market for compensation packages for a particular RD: Before I leave today, I need to review an S-1 for a bio- level of hire or the terms they can expect in a venture tech initial public offering, work on a bridge financing for financing. a medical device company, and walk a client through an M&A letter of intent for a company going through a com- JN: My favorite deals are the ones where everyone from petitive auction process. I do a lot of work in the M&A the client to the investors and the legal teams are ful- practice, and on a typical deal I will spend time with the ly engaged in the matter. It always makes for a much client explaining the letter of intent and helping them un- smoother process and everyone walks away happy with derstand all the terms after the top-line purchase price the outcome. The hardest part of my role in those deals number, summarizing a merger agreement into short is that I have to bring it all together and make sure that summaries that effectively convey to the client why they every opinion is considered. care about each term and that suggests solutions that are tailored to the client’s business, and then drafting JC: I think working with founders is the most fun – espe- and negotiating with opposing counsel to get to a final cially when their companies are gaining steam and go agreement. There are lots of people involved in this pro- Practice Areas Practice from nothing more than an idea to a high valuation and cess including bankers, lawyers, accountants, manage- profitable business. Founders typically look at you, even ment and investors that all need to provide feedback and as a junior or mid-level associate, as a trusted adviser clients will look to the lawyers to handle that process. whose advice they really respect and take. That makes it fun. The hard part is that you do not always know the AP: My latest deal involved helping a company go right answer and for many of these startups you are through an IPO on a very tight timeline. We had to keep helping them make really critical decisions on how to the business running and we were able to meet the very raise money, entity structure, and licensing deals that aggressive timeline, which resulted in a positive outcome could really help make or break them. Therefore, the key for the client. My role was drafting the S-1 SEC filing, re-

255 Technology – Goodwin www.chambers-associate.com

sponding to SEC comments, negotiating agreements JN: It’s not important at all. However, if you fi nd yourself with the underwriters, and importantly, acting as the not understanding a concept, you have to be willing to do quarterback to ensure everyone was on the same page the research to be in the position to better advocate for and moving toward meeting the deadline. your client.

CA: How important is a scientifi c background to your AP : For tech there is no need for a scientifi c background. work? Is there a type of person that would not thrive Someone who thrives is someone who can work on mul- in this area? tiple deals at the same time and handle lots of interaction with clients from an early stage in their career. EMM: Not at all. I think a technical background can be helpful if you want to do patent prosecution or have a Learn about your career at Goodwin... specifi c desire to work on IP agreements, but even then, it’s more important to have a deep understanding of a company’s business and how it uses its technology than a particular degree. As a general corporate lawyer in the technology sector, I don’t think I’m hindered in the least for not having a technical background.

Authors

Emma Jesse Nevarez John Casnocha Robert Dzialo Andrew Pusar Mann-Meginniss Partner Associate Associate Associate Associate Practice Areas

256 Tech transactions – White & Case www.chambers-associate.com

Tech transactions – White & Case

Innovation is the name of the game for White & Case’s expert tech transactions lawyers. Budding attorneys will have to keep up with the latest advances in tech; master multiple transaction types for companies in various industries; and help to answer intriguing questions such as ‘who’s the author of an artwork produced by an AI program?’

Chambers Associate: What are tech transactions and “Our technology clients represent what is the scope of White & Case’s tech transactions a broad range of tech industries, group? including online platforms and social media, as well as software, Neeraj Shah: Tech transactions is a catchall term that encompasses any transaction that involves or other- hardware, robotics, biotech, wise touches upon technology or intellectual property. pharmaceuticals, telecom and energy This broad definition captures many different types of clients.” transactions, and White & Case’s tech transactions group has a similarly broad mandate. We advise our clients in Arlene Arin Hahn: White & Case advised Avon Rubber, technology/IP M&A, investments, divestitures, joint ven- a UK-listed innovative technology group, specializing in tures, inbound and outbound licensing, and product and chemical, biological, radiological and nuclear (CBRN) platform development. and respiratory protection systems, on its strategically important acquisition of 3M’s ballistic-protection busi- Elle Davis: In the White & Case tech transactions group ness in the United States and the rights to the CERA- we work on both standalone tech transactions (which DYNE brand. The business is a leading provider of would include licensing agreements, collaboration next-generation armor, including ballistic helmets and agreements/joint development agreements, and stra- body armor. The transformational deal for Avon Rubber, tegic partnership agreements, and outsourcing or Soft- and the largest in its 134-year history, is in line with the ware-as-a-Service (SaaS) agreements, for example), as company’s stated strategy to create shareholder value well as broader corporate transactions that have tech- through, among other things, targeting value-enhanc- nology or IP components (which, in this day, includes ing acquisitions to complement its existing businesses almost every deal). Such broader corporate work in- and add additional growth opportunities. Closing of the cludes public and private M&A deals, whole-business transaction is subject to US regulatory approvals. The securitizations, project financing, and other financing, technology transactions team helped the client secure restructuring or insolvency work. its desired outcome in the various transaction agreements for this deal because some of the primary assets CA: Can you run us through a recent tech transactions driving the transaction were the proprietary intellectual deal? What was your role on it? property and technologies used in the business.

Ajita Shukla: White & Case is current advising a global CA:What does the firm’s tech client base look like? company in its divestiture of certain assets. The deal con- Are there any particular industries or specialties that sists of a handful of geographically-focused deals that stand out? Practice Areas Practice are progressing concurrently. Our team helped manage all of the deal documents, negotiations and issues relat- ED: Our technology clients represent a broad range ed to IP and the technology involved. As a senior associ- of tech industries, including online platforms and social ate, my role includes working with the client directly to media, as well as software, hardware, robotics, biotech, negotiate with potential buyers certain deal agreements pharmaceuticals, telecom and energy clients. However, related to the assets and ongoing commercialization of technology and IP touch almost all businesses and in- the projects and determining the assets included in the dustries today, so other companies that would not tra- deal and managing the disclosure of these assets. ditionally be considered ‘tech’ or IP-driven are part of our client base as well, such as restaurants, crea-

257 www.chambers-associate.com Tech transactions – White & Case

tors of consumer products, franchisors of home servic- Erin Hanson: The IP and technology aspects of a lot of es, and insurance companies. M&A and other corporate transactions are becoming more and more important, especially given the ever- AAH: Nearly all industries have been disrupted by tech increasing dependency of most companies on technol- at this point, so our tech clients expand beyond tradi- ogy (whether as part of their products and/or services tional tech companies. Although our tech clients include or powering their businesses). Also, we are seeing ever hardware and semiconductor companies, they also in- increasing digital convergence between the technology clude cutting-edge energy and waste innovators, robot- industry and other industries such as financial services ics companies, social media platforms, gaming platforms and healthcare. and fintech firms. CA: What challenges come with the practice? AS: Our client base is large and diversified, including pharmaceuticals, medical devices, healthcare, tech- NS: It is important for us to have a certain standard nology generally, banks and financial services, fash- of technical fluency to deliver the best possible advice ion. We have advised on large healthcare-related deals to our client. As technology is rapidly changing, keep- and are a leader in the fintech space. ing abreast of the latest developments can be particularly challenging. CA: How much of the group’s work is domestic versus international? “...if an artificial intelligence AS: It depends deal to deal. However, I would say that program creates an artwork, who is the many of our deals, even if they are domestic deals per se, author and is that artwork subject to have a bit of an international element. copyright protection?” AAH: Although it’s difficult to estimate without survey- ing all seven of the partners in our group, I would esti- AS: Having a truly global practice means being cogni- mate that at least 50-75% of our work involves an inter- zant that you have to provide services to clients all over national component. the world in time zones all over the world. Additionally, the practice is truly fast-paced, you may need to quickly CA: How has the area developed over the past five provide advice and help move a deal to completion. years? Have you noticed any recent trends? EH: The technology industry is known to ‘move fast’ NS: Over the past five years, the pace of transac- and innovate quickly. Companies are constantly produc- tions has drastically increased as tech firms grow their ing new technologies and services, some of which are tech activity and non-tech firms make technology invest- hard to fit within our existing intellectual property legal ments. This has meant that our tech transactions group framework. For example, if an artificial intelligence pro- has grown significantly in size over the past five years. gram creates an artwork, who is the author and is that The growth in the size of tech transactions groups has artwork subject to copyright protection? been the biggest recent trend over the past five years. CA: What is the most exciting aspect of being a tech transactions lawyer? Practice Areas “...we are seeing ever increasing digital convergence between the AAH: The fact that technology is often outpacing the law technology industry and other makes tech transactions both challenging and exciting. industries such as financial services In many instances, the agreements that tech transactions attorneys draft are not based on forms or prece- and healthcare...” dents, but are drafted anew to address the unique issues and risks associated with new tech. AAH: Tech transactions has become a much more mature field of practice in the past five years, with more ED: Since the technology does evolve so quickly, we as transactions becoming commoditized, such as smaller lawyers are also constantly learning about emerging outsourcing deals and startup investments. We have tech and the law. We have to be innovative lawyers in or- also started to see more firms invest in tech transac- der to keep up with the innovative industry. tions practices (rather than have their IP litigators take on the transactional work as well).

258 Tech transactions – White & Case www.chambers-associate.com

CA: What personal traits make a good tech transac- ED: [In addition to typical intellectual property class- tions lawyer? es] I recommend an IP drafting class, information law class (such a privacy and/or data security, and data-re- ED: It is often assumed that a technological or other- lated law) and a First Amendment-geared class (media wise science-based background is required to be a tech law or entertainment law are great too) if possible. transactions associate, but that is not the case. Having an interest in technology and intellectual property law, CA: What opportunities are unique to practicing at however, is essential because you are committing to a White & Case? field that requires constant attention to learning new things. It also takes creativity and an eye for detail (as AAH: White & Case is a truly global law firm with 44 of- lawyers in any transactional teams require). fices in 30 countries and six continents – and our people represent 109 nationalities and speak 88 languages. Last year, White & Case advised clients from 121 countries on “We have to be innovative lawyers in matters in 185 countries. The diversity and global mind- order to keep up with the innovative set of our people and our work is truly unique. industry.” ED: Working on deals with our international offices can be quite impressive. Recently, I have worked on several AAH: All good lawyers should be detail-oriented and deals with our Beijing and Hong Kong offices for mul- have good judgment. Good tech transactions lawyers are tinational clients, and it is remarkable to watch a deal able to understand the tech at issue and to find creative move throughout the day across the globe. This provides and commercial solutions, rather than just spot issues. us with a unique opportunity to provide 24-hour coverage on a deal in a seamless manner. NS: Additionally, a good tech transactions lawyer must be a total team player because tech transactions teams are NS: White & Case partners are truly committed to associ- leaner than typical teams in other practice groups, which ate development, providing valuable support, meaning- results in a flatter hierarchy. Finally, a good tech transac- ful guidance and timely feedback. As a whole, the firm tions lawyer is adaptable in their role, as leaner teams has made it a priority to foster a true community. As such, means that a tech transactions lawyer must stretch to practicing at White & Case offers the rare combination of complete challenging tasks. doing great work with great people.

CA: How can students keep up to date and get a head start in the area? “Recently, I have worked on several deals with our Beijing and Hong Kong EH: Take intellectual property law classes at law offices for multinational clients, and school (e.g. patent law, copyright law, trademark law, it is remarkable to watch a deal move etc.) and read about technology and trends including how some of the new technologies we are seeing, throughout the day across the globe.” like artificial intelligence, machine learning and the In- ternet of Things are creating challenges in different ar- AS: White & Case handles truly complex deals across eas of intellectual property law. a wide variety of practice areas. Further, associates are encouraged to broaden their practice to encompass all types of deal work, from M&A and licensing to capital “...a good tech transactions lawyer is markets and bank finance. Associates are also encour- adaptable in their role, as leaner teams aged to seek work in their fields of interest. means that a tech transactions lawyer EH: White & Case has tech transactions attorneys all over must stretch to complete challenging Areas Practice the world, not just in the United States. We frequently tasks.” meet, and work, together. It is great knowing who to call if you have an IP law question for another jurisdiction. NS: Students should take classes in law school, both on the black-letter law (IP survey course, along with specific courses on trademarks, copyrights, patents, etc.) and any practical courses covering IP and/or transactional work in general. Students should also follow leading technology news sources (NY Times, Patentlyo, TechCrunch, etc.).

259 Tech transactions – White & Case www.chambers-associate.com

Authors

Neeraj Shah Elle Davis Ajita Shukla Arlene Arin Hahn Erin Hanson Associate Associate Associate Partner Partner Practice Areas

260 Technology www.chambers-associate.com

Technology

In a nutshell • Represent clients seeking the provision of IT services Technology lawyers are experts on the rapidly changing through a third party. laws and regulations surrounding complex communica- • Assist the government to promote competition be- tion technologies. Their classification as an attorney can tween telecom and other technology companies, and vary – some fall under the IP umbrella, while others work ensure services don’t interfere with national security. within corporate or trial departments – but tech lawyers are united in their specialized industry expertise. Many narrow their focus to the telecommunications field, Realities of the job which deals with media such as telephones, cable, radio • Technology transactions often require attorneys to and the internet; others focus on information technology work as part of a multidisciplinary team that incorpo- – which involves software, e-commerce and data privacy rates lawyers from multiple fields, including IP, tax and issues – or outsourcing, which oversees the provision of corporate. “My role is like that of a quarterback,” Baker third-party services. Botts’ managing partner John Martin tells us. “I coordinate lawyers from other practice areas and disciplines Whatever their specialty, a tech lawyer’s primary role to develop and implement an integrated solution and to is to help clients abide by the complicated policies that address the client’s many issues. It’s a multifaceted ap- pertain to certain technologies. In the US, such policies proach.” are by and large enforced by the Federal Communica- • Technology is the perfect field for those wanting to tions Commission (FCC). Typical matters range from experience ingenuity. “It is energizing and exciting to be working on behalf of the government to promote fair around creative and inventive people,” says Lori Less- market competition, to overseeing disputes between er of Simpson Thatcher & Bartlett. “These people are telecom corporations, to advising merging companies on changing the world, saving the world and affecting how contract negotiations. we work, how we get to work and run our lives online. It’s a real privilege to work with these people.” Rapid advances in technology mean each generation of • The field is constantly changing thanks to develop- tech lawyers faces a shifting workload – attorneys today ments in technology, which means “every deal is differ- regularly contend with smartphone and internet-related ent and every transaction has its own challenges,” Mar- matters, while their 20th century counterparts mainly tin says. “There’s no cookie-cutter matter out there; each dealt with telephone line technology, and attorneys in deal is unique, which makes this a challenging and in- the 19th century grappled with the telegraph and other tellectually stimulating field. Nothing is rote or routine, disruptive innovations. and the learning curve never plateaus.” This shifting workload also means “practitioners should be comfortable with ambiguity,” Cherie Kiser of Cahill Gordon & What lawyers do Reindel advises. “The law surrounding communications • Advise companies on commercial transactions, in- issues is constantly changing because the technology cluding mergers, acquisitions, investments and the is dynamic. Developments are happening in real time in purchase of services, particularly those with antitrust this sector, and lawyers are called upon by their clients issues. to help shape and influence those laws. One should be • Negotiate contract terms for companies acquiring comfortable with that lack of stability.” new technologies or enhancing existing ones. • Because technology lawyers are specialists, they typi- • Handle diligence and draft transaction documents. cally “handle the majority of matters themselves rather • Assist with dispute resolution, often between telecom than delegating projects or issues completely,” Kiser Practice Areas Practice companies. Many disputes are cross-border and often says. This means even top-level partners are obliged to fall under the IP bracket – for example, patent infringe- contend with grunt work like diligence at times. “For- ment cases. tunately, matters are interesting!” she adds. Technol- • Represent clients at trial, usually in the State Court. ogy and telecom matters have “a language of their • Counsel communications companies, such as cable or own that’s highly technical and full of acronyms,” Kiser internet providers, on their regulatory obligations. warns. As such, attaining a good grasp of the relevant • Help companies learn how to protect their IT and web- jargon – accessible through industry trade journals and based assets and defend themselves against cyber- magazines – is a crucial aspect of the job. squatting and other data protection issues.

261 www.chambers-associate.com Technology

Rankings in Chambers USA into documents very early in their career. One pro is the learning curve the associate goes on to advance.” • When working on the transactional side, building good Top Ranked client relations is at least as important as the out- Covington & Burling Gibson, Dunn & Crutcher comes of certain cases. “You can do a good job for your Goodwin client and they say thank you, but you don’t win,” says Harris, Wiltshire & Grannis Steinig. “You don’t have that high and low that you have Jenner & Block in some other areas of law.” Latham & Watkins • A job as a tech lawyer isn’t limited to a BigLaw firm, Mayer Brown though an increasing number of matters are now han- Morrison & Foerster dled by teams at private firms, thanks to the manpow- Pillsbury Winthrop Shaw Pittman er and other resources such establishments have at Skadden, Arps, Slate, Meagher & Flom & Affiliates their disposal. Options outside of BigLaw include serv- Weil, Gotshal & Manges ing as legal counsel for the FCC and going in-house Highly Recommended with a telecom firm. Akin Gump Strauss Hauer & Feld Arnold & Porter Baker Botts Current issues Bracewell June 2020 Choate Hall & Stewart • What are the limits of using technology to protect na- Cooley tional security? This is a question that will continue to K&L Gates rear its head in many situations as circumstances and Kirkland & Ellis technology evolve. One such example arose in Decem- Mintz Levin Cohn Ferris Glovsky and Popeo PC ber 2019, when The Washington Post reported on the Morgan, Lewis & Bockius Perkins Coie Department of Homeland Security’s decision to retract Proskauer Rose its proposal to use facial recognition technology on US Shearman & Sterling citizens entering and exiting the country via airports. Sheppard, Mullin, Richter & Hampton The American Lawyer subsequently posited in an arti- Sidley Austin cle that this issue was likely to crop up again. Venable • In March 2020, Amnesty International published a Vinson & Elkins comment piece on its website that highlighted the White & Case US government’s role in “adopting robust regulatory Wiley Rein measures and accountability mechanisms to ensure that Willkie Farr & Gallagher AI advances rather than undermines human rights.” Key WilmerHale Wilson Sonsini Goodrich & Rosati areas of concern for Amnesty were the development and use of Autonomous Weapons Systems (AWS); the For more detail on ranking tiers and locations, visit protection of workers’ rights in light of AI advances www.chambers.com that have automated aspects of jobs; and the use of AI and technology in the areas of policing and criminal justice. Although a strong interest in technology is essential, On the latter point, the website Vox published an arti-

Practice Areas • • a related degree is not necessarily a prerequisite. “You cle February 2020 on how police departments may be don’t need to have a technology background from uni- using surveillance technology to help prevent crime. versity,” says Lesser. “You need to have the self confi- It included comments from Albert Fox Cahn, the ex- dence to know that you can be educated.” ecutive director of the Surveillance Technology Over- • The area is a very good place for a lawyer who wants to sight Project (STOP), who highlighted the potential for hit the ground running. “It is an emerging field; it’s very certain technologies to embed discriminatory models: easy to make a name for yourself early,” says Lesser. “It’s “The NYPD could waste millions of dollars on tools which not a field with people with decades of expertise. The simply automate discrimination against communities law is brand new and every time there is a law on trade and lead to false arrests […] without any accountability secrets, patent law enforcement or EU law, everyone or oversight.” starts on day one. If you’re eager to learn, inhale as much • With the advent of autonomous vehicles becoming a knowledge as you can and you will quickly be as expe- familiar site on our roads, the US will be developing rienced as someone older.” Michael Steinig of Ever- and refining regulations that will determine their use. sheds Sutherland backs this up: “Associates get more Turn to page 64 to read up on what Dykema’s autono- client interaction. They are negotiating what needs to go mous vehicle experts have to say about this exciting

262 Technology www.chambers-associate.com

and complex development. One of the benefits of us- cerns about data privacy. In February 2020, White & ing this technology became apparent in April 2020, Case’s lawyers highlighted in a client alert the ramifi- when The Mayo Clinic in Florida used autonomous ve- cations on businesses of the California Consumer Pri- hicles to transport COVID-19 patients to testing labs to vacy Act (CCPA), which largely came into force in Jan- limit their contact with others. uary 2020. The alert explored the tighter regulatory • In late 2019, the Federal Aviation Administration pro- framework that businesses must now adhere to, which posed a new rule that called for unmanned aircraft includes greater protections for California’s estimated systems – such as drones – to be remotely identified 40 million consumers, such as opt-out choices; ability while in flight in US airspace (the Remote ID rule, in to access and request the deletion of personal infor- other words). If implemented, this rule would, as the mation; and the receipt of a transparent breakdown of National Law Review pointed out in February 2020, re- how their data is used. quire changes to the way unmanned aircraft systems • Over in Washington, meanwhile, a new privacy act (the are produced and operated. As a CNBC article sug- Washington Privacy Act) failed to pass in March 2020. gested, this rule would enable greater security via the Commenting in a piece for Washington-headquarted tracking and identification of unauthorized drones, but Microsoft’s official blog, chief privacy officer Julie Brill also help to pave the way for the widespread use of highlighted how the proposed act would have offered commercial drones – something that companies like a broader array of protections than those in the CCPA. Amazon and Uber are keen to use to speed up those A follow-up article in the National Law Review com- delivery times. mented on the number of other states with privacy • The rise of new technology and apps for capturing and legislation in the works but questioned their adoption storing information has inevitably led to ongoing con- for the time being in light of COVID-19. Practice Areas Practice

263 www.chambers-associate.com Transportation and space – Milbank

Transportation and space – Milbank

Ever wondered what it might be like to help launch a constellation of satellites? Or fly in an aircraft you’ve helped to finance? Join Milbank’s transportation and space experts as they take you through their global practice, which involves keeping our ever-changing world moving and connected.

Chambers Associate: Can you summarize what the international aspect to this practice, and even as a junior transportation and space group at Milbank does? associate we are encouraged to be in charge of liaising with counsel in many different jurisdictions. That type of Drew Fine, partner: We work in the areas of financing, responsibility has been very valuable in the early stages capital markets, M&A and financial restructuring for the of my career. aircraft, railroad, shipping, telecommunications and satellite industries. CA: What do partners do?

Freyda Mechlowicz, partner: We work on transactions FM: Partners are more involved in the beginning stages that involve transportation and space assets. These of marketing and structuring transactions, often lead- transactions, which typically include parties from differing the associates who are working on those aspects of ent jurisdictions all over the world, range from complex the transaction. But in our group, we all see ourselves as structured financing and complex acquisition transac- collaborators. While partners bring specific experiences tions to more simple single-asset financing or single- and skills to the table, partners and associates work to- asset leases or sales. gether to service the transaction and make sure the clients’ needs are being met. DF: It’s a very international practice. According to one of our attorneys, last year we worked on transactions in- DF: As partners, we are responsible for the client rela- volving approximately 190 different countries. tionship, making sure our team is being responsive to clients’ requests and coordinated in their approach. We also CA: What do associates do? oversee workloads, making sure everyone is handling tasks that are appropriate to their level of experience. Alexandra Johnson, counsel: Our practice group allows Since our team is tight-knit, partners, senior associates young lawyers to gain a lot of experience and handle nu- and mid-level associates are often working together on merous responsibilities early on in their careers because the same deal. of the varied types of transactions that we work on. As- sociates draft documents and negotiate, and they also AJ: In our group it’s a truly collaborative effort, and this Practice Areas handle cross-border matters, dealing with local counsel collaboration allows us to see how colleagues who are in various jurisdictions. As a result of that cross-border more senior and experienced, like Drew and Freyda, han- exposure, we end up learning not only about New York dle their work. Everyone in our group gets that exposure law and law in the United States, but also about interna- at an early stage in their practice, and it’s an extremely tional and region-specific law. Our group at Milbank is helpful reference point for learning to do this specific great at giving junior-level associates the ability to take type of work yourself. leadership roles. CA: What are the highlights of the practice? Glenn Kim, associate: Adding from the perspective of a junior associate, we handle work, such as keeping track GK: I think what really excites me about working in the of documentation and conducting lease diligence, which transportation and space group is that we are working is our due diligence. But in some cases, particularly on with assets like aircraft, which are tangible things. I get a smaller deals, you are working with a leanly staffed team lot of satisfaction from knowing that a deal I have partici- and can take on a leadership role from the very begin- pated in or helped put together results in physical assets ning. Additionally, as Drew mentioned, there is a large that help people travel across the world. One of the real

264 Transportation and space – Milbank www.chambers-associate.com

highlights that I am looking forward to is traveling in a tation industries slow down, there is always work in our plane that I helped finance; the practitioners in this in- area. We are prepared for all cycles that our industry dustry are also a highlight. Since aircraft financing work goes through. is so specialized, people working in this area form a type of close-knit community, and I truly appreciate getting to AJ: Also, despite the current and imminent circumstanc- know them. es, aircraft and satellites are fundamental to the world’s progress. Those aircraft still require financing and satellites still need to be launched. In fact, satellites are go- “Since aircraft financing work is so ing to be even more relevant now, as everyone is trying specialized, people working in this area to work from home and connection is so critical. So, our form a type of close-knit community.” job requires figuring out how to help keep those assets moving because the world relies on them more than ever before. DF: There are so many opportunities to see and appreciate the tangible assets that you work with in this in- CA: How do you see the market evolving in the next dustry. You get to see the aircraft, or the railcars or the few years? ships you have helped finance, or you could get to watch a satellite launch. Transportation is so integral to the DF: The market is constantly evolving in the transporta- world and how it operates, and it’s one of the largest in- tion and space sectors, particularly in the areas of tel- dustries across the globe. Another real highlight is how ecom and satellites. Improving connectivity will be an truly international this practice is. Every transaction that ongoing theme, as connectivity of people and assets is we work on involves multiple countries. The opportunity so central to transportation and telecommunications net- to interact with people from a diversity of backgrounds, works across the globe. Part of this work involves envi- countries and languages makes our work that much sioning what the world will look like and acknowledging more engaging and fulfilling. Also, because we are an in- that the work we do today as lawyers will be different dustry group, another highlight is our freedom to take on than the work we are doing in two years’ time. different types of projects. We aren’t limited to one type of transaction: we can handle a merger and acquisition FM: Right now, discussion of the market’s evolution has transaction or a capital markets transaction, or a bank- shifted to addressing the present, due to what’s happen- ruptcy or a financing. ing day by day with the pandemic’s economic impact. But outside of this immediate market snapshot and the new challenges posed by it, the transportation and space sec- “You get to see the aircraft, or the tors are still thinking about issues that were previously railcars or the ships you have helped top of mind. Aircraft leasing companies, for example, finance, or you could get to watch a will continue to think of ways to adapt to the needs of satellite launch.” their customers, the airlines. It’s possible that new ideas to serve customers will evolve from the current market’s shifts, and our job is to continually communicate with cli- AJ: In New York and in BigLaw firms, you sometimes ents about these changing strategies. feel like you have to specialize in one particular type of work. Although we work specifically on transportation CA: What current issues within space law are affecting and space assets, our practice area is truly dynamic due the type of work your practice does? to all the different types of transactions and deals that we work on. Working in this group means that we get ex- DF: Space law, specifically the areas of law addressing posure to tax issues, capital market issues and treaties, satellites and telecommunications, is currently focused as well as so many different areas of law and areas of on improving connectivity. Connectivity helps improve practice. individual connections and allows for stronger signals, Practice Areas Practice but also makes it possible for new technologies to be put CA: And the lows? into place. Creating better connectivity often involves the creation of constellations of satellites: for example, AJ: The current state of the world with the effects of Amazon is working to place 3,000 satellites into space to COVID-19 is a low for everyone, but ultimately it presents better support their business. a challenge for us and encourages us to get creative.

DF: The practice is typically acyclical, so even when there are shifts in the economy and the aircraft and transpor-

265 Transportation and space – Milbank www.chambers-associate.com

“Amazon is working to place 3,000 CA: What makes for a successful transportation and satellites into space to better support space lawyer? their business.” FM: The overall qualities that make for a successful transactional lawyer also serve attorneys well in our AJ: The current market shifts pose a particular chal- transportation and space practice. Having attention to lenge for the space industry, because satellite projects detail and good communication skills is important, as tend to be on longer project timelines. Satellites can be is being able to keep track of multiple workstreams. It’s costly, and they are often heavily customized products also important to develop the ability to spot issues ahead with a long production process. In the current market, of time. Good relationship-building skills are also vital to where things have shifted rapidly, clients may still be our work. focused on fi nding fi nancing for a longer-term satellite project that will be ready in a couple of years, but they GK: From a junior associate perspective, it helps to have are searching for fi nancing in a market that is reacting to organizational skills because the transactions we work more immediate events. This type of issue is equally true on can be large in scale and cover many jurisdictions. It’s for aircraft and vessels: production of assets takes time, also important to understand the deal fl ow and to be able even when the economy is changing quickly. to keep track of where the transaction’s parties are in the life of the transaction. Additionally, it’s useful to have an CA: How are your lawyers tackling these issues? inquisitive mind, as it keeps you thinking about how you can be a value add to senior associates and partners. DF: Our clients, similar to Amazon, are fi nancing constellations of satellites to boost connectivity and further DF: I would add that it’s truly helpful to be the type of at- support their business goals. Our job is to help these torney who wants to be challenged. We’re always devel- clients address complex laws and competitor issues, as oping new technologies and new products and working well as help them fi nance and develop these projects in on something different each day. Our clients also bring the most effi cient way. We have to stay at the forefront, us new issues and problems, and we need to proactively anticipating our clients’ needs and developing appropri- solve them. An attorney who is not complacent is most ate products to address them. Change is a constant in likely to be successful with this type of adaptive work. the transportation and space industries, and it’s a fulfi ll- ing and exciting challenge to adapt our practice to our clients’ different needs.

Authors Practice Areas

Drew Fine Alexandra Johnson Glenn Kim Freyda Mechlowicz Partner Counsel Associate Partner

266 Venture capital – Gunderson www.chambers-associate.com

Venture capital – Gunderson

From seed to growth, from just an idea to a successful exit: this is the exciting world of venture capital, where lawyers grow alongside the companies they incorporate and mix in a world of innovators and investors. Gunderson’s expert attorneys tell all...

Chambers Associate: How would you define Gunder- started tracking that number almost a decade ago. Un- son’s venture capital practice? like many firms, attorneys at our firm who practice in this space are working with start-ups and venture funds Melissa Marks, partner: One way to think about our 100% of the time. That leads younger attorneys to get a practice is as outside general counsel to venture capital very high number of “at bats” very early in their career funds and venture-backed technology companies. We compared to other firms. advise venture fund clients on fund formation matters as well as on investment transactions. For our technology CA: Why did you choose this practice area? companies, we advise on intellectual property transactions, privacy compliance, private corporate governance, MH: Growing up I’d always been interested in being on equity and debt financings, employee matters, and more the bleeding edge of technology, and this practice al- - essentially anything that crosses the legal path of a lowed me a window into that world while still practicing start-up, other than litigation. law. I also enjoy the collaborative nature of the practice. In a venture financing, most investors who are “repeat players” aren’t viewing the deal as a zero-sum game and “Our clients include leading funds so it allows more creativity and collaboration than my ex- investing in companies at every perience with more “private equity” practices. stage...” “When it comes to raising and investing Mike Heath, partner: We work with companies as early in venture-backed companies, we are as a single founder with a pitch deck and wireframe, all the market leader.” the way up to so-called “decacorns” – this is an industry term for a private company valued over $10 billion. It’s a play on the more well-known word, unicorn. Our clients Damon Zhangchai, junior associate: Venture is the dom- include leading funds investing in companies at every inant industry in Silicon Valley – it really is the driver in stage – from Seed to Growth – in the negotiation and doc- a way that private equity or some other kind of finance umentation of their investments. practice isn’t. It always made sense for me, personally, to keep it close to the ground, so to speak. CA: What is unique about Gunderson’s venture capital practice? CA: What are the roles for associates and partners?

MM: Gunderson is one of very few large law firms where MH: Partners are typically more heavily involved earlier transactional attorneys can truly be generalist practi- in the process, e.g. in negotiating a late stage venture tioners throughout their career. Whereas other firms term sheet or in negotiating an M&A letter of intent. Af- Practice Areas Practice offer a rotational model where attorneys spend some ter a term sheet or an LOI is signed, a partner will typi- or all of their career as a securities lawyer one year, an cally work with one or two corporate associates to see M&A lawyer the next, we have the opportunity to be all of the transaction to a close. Typically a partner will review these all the time, and we get to do it all for high-profile drafts, mentor associates, and negotiate on conference clients in an exciting and ever-changing market sector. calls. Every deal and client is different though, and there’s certainly no one right way of doing things. MH: When it comes to raising and investing in venture- backed companies, we are the market leader – closing DZ: An associate – from a junior associate up until when more deals than any other law firm since the industry you’re a mid level – is expected to be the primary point

267 www.chambers-associate.com Venture capital – Gunderson

of contact with the client. Considering a typical day, as DZ: My favorite part is helping companies that I’ve incor- an associate, ballpark 40% of your time is general “cor- porated years ago. I have about two dozen companies porate maintenance” work. For example, when a founder that I’ve formed and have been with from the start so emails or calls you and needs to throw something to- they’re extremely comfortable with me and I’m equally gether. Another 40% is venture financings for those comfortable with them. Oftentimes the advice isn’t strict- same start-up clients, which are the bread and butter of ly legal advice that they’re asking for, but rather they’re the transactions that we do. When a client gets a term looking for another person to be at the table, someone sheet, we review the term sheet and work with them to that they trust, and because we’ve built this relationship mark up that term sheet to the extent necessary. Law- over years, they reach out to me to give generalist advice yers on both sides negotiate the definitive agreements and perspective. underlying that financing round. The other 20% is what I would frame as “big ticket transactions,” which are exit AP: The biggest satisfaction is really seeing a client go transactions. from an idea to a just newly incorporated to a successful exit – that to me is kind of the most enjoyable thing. We CA: What are the biggest challenges for lawyers and get to see the fruits of their labor and sometimes that’s their clients in this market? after two years or sometimes that’s after ten, but being able to see them be successful and get the exit that they MH: I think the biggest challenge for lawyers in this were hoping for – that’s always the most rewarding to me. space is what I call the “yesterday expectation.” Our clients like to “move fast and break things.” As you may CA: How should lawyers build a career in this market? be the first attorney that they’ve ever worked with, they may not have an appreciation for all the things that you MM: Because venture capital is a smaller legal market do, and the amount of work that some “asks” will take. than, for example, private equity, lawyers who develop There’s sometimes an expectation that everything be an interest in the practice early have an advantage over done yesterday, which can be challenging. those who try to lateral into it from a different practice later in their career, as the number of lateral positions is Andrew Person, associate: I think a challenge, especial- limited. ly because we work with a lot of early stage companies, is to figure out a way to provide excellent legal service MH: Be patient. As a young attorney you will likely be but to do it in a cost-efficient manner. There’s always working with lots of early stage companies. Those early a kind of push and pull with that: being able to give to stage companies are the lifeblood of a practice. You will our clients but also charging what they can pay. On the grow with them, and them with you. While success in corporate side, sometimes there are changes in laws, Silicon Valley may seem like an overnight fairy tale, the whether it be a California law or a Delaware-specific law, reality is that for most companies it will take years and and we need to be up to date with and cognizant of any years of hard work. That said, time is a finite resource, kind of changes in the law so that we can communicate so you need to be like a venture capitalist and develop that to our clients. a sense of what companies will be successful in raising venture capital and reaching an exit, and those that likely CA: What do you enjoy most about your work? won’t be.

MM: I love the variety that my practice offers. In a sin- Practice Areas gle day recently I was able to attend a board meeting for “Those early stage companies are the an e-commerce brand of which I am also an enthusiastic lifeblood of a practice. You will grow customer; negotiate a merger agreement for the acqui- with them, and them with you.” sition of a media property; advise an international SaaS company on US tender offer regulations; and counsel the general partner of an aerospace-focused venture fund CA: What are the current trends affecting the market? on a potential investment. MM: There are more venture fund dollars in the market than ever before. SoftBank’s Vision Fund is the most “The biggest satisfaction is really noteworthy example of this, but the phenomenon is much seeing a client go from an idea to a broader, and is changing the venture landscape in a num- just newly incorporated to a successful ber of ways, like the recent increased focus on founder exit.” controls and governance structures. On the commercial side of things, ever-changing privacy regulations require tech companies to have their engineers work closely

268 www.chambers-associate.com Venture capital – Gunderson

with legal counsel to understand how their data collec- CA: What advice do you have for students considering tion and usage practices must be tracked and disclosed. a career in this area?

DZ: Increasingly over the past two years, our clients have MM: Seize the opportunity to get some relevant expe- been doing more secondary transactions in connection rience while still in law school, whether through an en- with primary fi nancings. This means the company is so trepreneurship or other transactional clinic, by taking a hot and capital is so robust in the space that founders venture law course, or by interning at a start-up company can release some liquidity in their ownership before the over your 1L summer or during the semester (and on the traditional kind of exit transaction (eight to ten years latter point, don’t limit yourself to applying only to com- down the line) when you sell to a large industry player. panies that have posted for a legal intern; this industry values initiative and drive, so if there is a start-up you CA: Do you have any career-defi ning moments? would like to work at, email them and tell them why).

MH: Moving to LA in 2012 to open this offi ce is my career defi ning moment. The fi rm allowed me (as a fourth- “...this industry values initiative and year) to be the lone day-to-day person on the ground in drive...” a new and growing market. That decision ultimately set my career on the trajectory that it’s on today. Allowing a MH: The legal community in this market is very small, so mid-level associate that sort of autonomy isn’t the sort of fi rst and foremost, treat everyone you encounter collegi- thing that I see a lot of other fi rms offering. I think it’s one ally. That doesn’t mean you can’t disagree but you need of the things that really makes Gunderson unique. to do so professionally. This is not a practice area that rewards the bombastic, screaming grandstanders. Sec- ond, if you’re in law school, have a demonstrated interest “...ever-changing privacy regulations in the area – join the technology or business law journal. require tech companies to have their Third, know the lingo and players. Read the industry rags. engineers work closely with legal Fourth, live in a city where venture happens. It’s much counsel.” easier to build a practice in technology and venture capital hubs than it is in other parts of the country.

AP: I can think of one particular instance when I was a AP: My advice would be to not be afraid to reach out to junior associate. I was doing a fi nancing and I had done a associates, partners, or really anyone in this space that handful of them before, but there was always someone does this kind of work. I think the biggest and greatest that was senior to me on these transactions. I was work- advice that I got was to continue to hustle and network ing with an associate who was due to go on maternity because that not only helps from a business develop- leave in a month or so, but she ended up leaving earlier ment perspective, but it also helps in terms of getting a than expected. I was then the only associate on the mat- job. For me that was the way that I kind of fell into the ter and I had to fi gure out how to negotiate the document space. I reached out to somebody who was an alum of my and how to run the transaction to close. That was a bit law school and they took a chance on hiring me so I think of a daunting experience, but I think I learned the most that is the best advice that I could give to a law student. because I just had to force myself to fi gure out some of the more nuanced and complicated parts of the law that I didn’t have to really pay attention to as a junior associate. For me, it was career defi ning because I felt like I learned the most in the shortest amount of time.

Authors Practice Areas Practice

Mike Heath Melissa Marks Andrew Person Damon Zhangchai Partner Partner Associate Junior Associate

269 www.chambers-associate.com Wealth management

Wealth management

In a nutshell Realities of the job Private wealth lawyers advise wealthy families, individu- • Basil Zirinis, a leading wealth management partner als, trustees and fiduciaries on all aspects of estate plan- at Sullivan & Cromwell, says: “Our practice is a mix of ning, including asset management, tax planning, wills drafting, meeting, advising and researching.” and trusts, charitable contributions and various types of • Wealth management tends to offer young lawyers estate litigation. Matters can be purely domestic or have more direct client contact than they’d typically get in an international element if, for example, a family has non- a larger corporate or litigation department. “If you’re US resident members, is seeking asylum in the country, a strong associate and you show drive, there is always or has invested wealth overseas. the opportunity to be very involved with families face-to- face,” says Zirinis. A great deal of private wealth work is tax-based, espe- • Building relationships with clients is an important part cially with regards to income and estate tax. However, of the job, as Carlyn McCaffrey of McDermott Will & specialists in this area also need to ensure their corpo- Emery explains: “Many private client attorneys end up rate tax knowledge is up to date, as it’s not unusual for with hundreds of clients over their careers. They don’t their family clients to have multimillion-dollar businesses work for them all at the same time, but they don’t finish to their names. As Carol Harrington of McDermott Will with a client either. Estate planning is a lifetime enterprise. & Emery highlights: “In addition to the original family If you had a client 20 years ago that you did good work for, business, one client owns casinos, two major league sports chances are you’re still working with them today.” teams and a charitable foundation – that’s a similar situa- • Harrington also drives home the importance of empa- tion for a lot of clients.” thy and client-care skills. “These are real life people- problems; sometimes kids aren’t financially responsi- Compliance is another important aspect of wealth man- ble, for instance, and sometimes families don’t get on.” agement. Lawyers need to cultivate a lot of regulatory She adds: “There’s a crisis every minute and each client knowledge in order to advise their clients, who may have wants to be the only client you have. Any one of my cli- multiple requirements as shareholders of corporate en- ents could call me with something crucial to them; their tities, trustees of charitable foundations, charitable do- dad’s had a heart attack, so what do they do?” nors and recipients of trusts. • Research forms a large part of the role. “We’re fortunate enough to have a practice where the questions are unusual and complex, and there are often no clear an- What lawyers do swers,” Zirinis notes. “We add value where the answer is • Structure assets to create tax-efficient structures for unsettled, so the associates are doing research, but it’s private individuals seeking to transfer assets to family creative research. This makes it more challenging and members or executives of estates. more interesting.” • Draft wills, trusts and estate documents. • Attention to detail is vital, especially when structur- • Regularly meet with clients. ing assets for high net worth individuals (HNWIs). “It’s Aid families and wealthy individuals with their person- important that you understand the law; it’s technical,

Practice Areas • al tax liabilities and solutions. complex and it can get pretty complicated,” Harrington • Establish and structure charitable organizations, as points out. well as charitable endowments and funds. • Private wealth lawyers tend to juggle several matters • Provide families with multi-jurisdictional advice per- at once. “This element is a challenge, but at the same taining to their international estates. time it’s a high point. There’s so much variety and you • Liaise with private wealth lawyers around the world. never see the same thing over and over again. It’s thrill- • Represent trustees in litigation regarding their con- ing, exciting and fresh,” Zirinis enthuses. duct when handling an estate. • An interest in tax and a good feel for numbers is a • Communicate and discuss strategy within a team. must. McCaffrey says: “The ability to deal with numbers is important. You don’t have to be a math wizard, but you can’t be afraid of spreadsheets.” Often clients will have business interests that need to be factored in, but the more complex sums are usually sent to the firm’s corporate tax teams to figure out.

270 Wealth management www.chambers-associate.com

Rankings in Chambers USA to develop more nuanced analytics for enhanced client insight. Top Ranked • Privacy has always been paramount in this area, but its McDermott Will & Emery LLP importance has been enhanced by the current climate. In 2017 the ‘Paradise Papers’ leak revealed details of Highly Recommended massive offshore trusts held by the world’s wealthi- Holland & Knight LLP est individuals. Said details prompted a host of diffi- Milbank LLP cult questions for the rich and famous, among them Greenberg Traurig, PA American billionaire James Simons, who privately Katten Paul, Weiss, Rifkind, Wharton & Garrison LLP transferred $7 billion to Bermuda for tax purposes. Proskauer Rose LLP The leak sparked widespread debate on tax havens Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates and the ethics of tax evasion (illegal) versus tax avoid- Schulte Roth & Zabel LLP ance (legal), which continues to this day. Sullivan & Cromwell LLP • The Tax Cuts and Jobs Act of 2017 cut the corporate Kirkland & Ellis LLP tax rate from 35% to 21%. It also served to benefit Ropes & Gray LLP higher-income families thanks to the estate tax thresh- Venable LLP old being more than doubled: as of 2019 tax now need For more detail on ranking tiers and locations, visit only be paid on estates worth more than $11.4 million. www.chambers.com Its favorable treatment of “pass-through” companies resulted in an estimated $17 billion in tax savings for millionaires in 2018. The potential for a changing ad- Current issues ministration might see the pendulum swing in another June 2020 direction soon – clients will want their lawyers to help • “The global nature of wealth certainly has an impact on them prepare. the practice,” says Amy Heller of Skadden. “It’s in- • According to the Financial Secrecy Index 2018, the US creasingly common for wealthy families to have family is second only to Switzerland when it comes to the se- members and assets in multiple jurisdictions, so it’s im- crecy and scale of offshore finances. Compiled by the portant to have – at the very least – an awareness of other Tax Justice Network, the US has a 4.09% FSI share, countries’ laws and a sensitivity to other cultures.” more than twice the share of Panama. • In a 2019 article by Berkeley economist Gabriel Zuc- man, a summary of current research showed that Basil Zirinis’ advice for aspiring wealth the top 1% of families in the US own 40% of the to- management lawyers: tal household wealth – signaling levels of wealth in- • Hone your diplomacy skills. “Because it’s such a human equality not witnessed since the Great Depression. It area of the law, it can be extremely emotional. Do you also means the US is the second worst country in the leave assets outright? Do you trust your family? There world for wealth inequality, behind Russia. On a global is no right answer. When families are fighting they want level, a 2019 Oxfam report (which some economists you to help them settle it, but given the emotions and challenged) found that the wealthiest 26 people had family history it can very difficult. It’s not about ‘right’ or the same net worth as that of the bottom 50% of the ‘wrong’ family members, it’s just that there is often no world’s population. All of this, Carol Harrington be- clear or perfectly right answer.” lieves, means that “there is a lot of work to do. In the • Tax it up at law school. “Students should definitely take next ten to 20 years there is going to be the greatest as many tax courses as they can in law school – including transfer of wealth in the history of the world.” corporate tax. The more of a background they have in • Over the next 25 years, there will be a generational shift: tax, the more helpful it will be.” high net worth individuals will pass over their money • But still keep it broad. “We do everything from corpo- to younger heirs. This new generation will change the rate law to litigation in our practice – so the broadest pos- shape of wealth management, especially with regards sible academic experience is also important.” Practice Areas Practice to the use of digital technology. Artificial intelligence • Expand your language skills. “An international perspec- will also play a role: in theory, AI will be able to speed up tive on the world is helpful, especially because the ex- the ‘know your customer’ and onboarding processes for plosion of wealth is global. It’s not just the US and Europe firms. Indeed, we are already seeing an increase in the anymore; it’s China, Latin America and many other juris- use of AI-led advice platforms. dictions. That’s where the most interesting work will ulti- • Similarly, with the growth in volume of consumer data mately be for young lawyers, so languages are extremely (according to Deloitte, 2.8 zettabytes of data were cre- important.” ated in 2012, which is expected to grow to 40 zettabytes in 2020), wealth management firms will be able

271 www.chambers-associate.com White collar litigation – Cahill

White collar litigation – Cahill

In the fast-paced world of white collar litigation, junior associates get to utilize the skills of investigative reporters, and can find themselves chasing money trails and detecting patterns in financial records. We caught up with a few white collar litigators at Cahill to find out more about becoming a lawyer in their practice.

Chambers Associate: What is white collar law? ments that you have shown them or surprised to hear certain questions, or being able to piece together the Brian Markley, partner: The representation of corporate facts of a situation to explain what might look like mis- clients and their officers, directors, employees, boards conduct on first glance was actually legitimate. and board committees in cases and investigations, typically brought by government agencies, in the U.S. and BM: Sometimes the hours are long and the work stress- abroad. ful, but I wouldn’t change a thing. Our white collar practice is interesting, impactful and high profile. Helena Franceschi, partner: “White collar” law refers to the broad range of finance-related offenses that can CA: What do associates do? be subject to regulatory investigations and enforcement JS: Associates work on all aspects of an investigation actions. It covers a range of conduct and can implicate including the fact development stage and the legal ar- antitrust, the Foreign Corrupt Practices Act, anti-manip- gument stage. The fact development stage involves re- ulation, and fraud statutes. Because white collar laws viewing documents, interviewing witnesses, and devel- often concern the practices of global institutions, these oping a timeline of key events. The legal argument stage investigations may involve cross-border proceedings be- involves conducting legal research and drafting memo- fore multiple regulators. randa, talking points, and presentations for clients and for regulators. CA: What are the highs and lows? Junine So, associate: The fast pace of some government IT: I have been on investigation teams that were 20+ peo- investigations can translate to late nights and long hours, ple where my primary role was to do second or third line but also the highs of increased substantive learning op- review of documents and to build out chronologies based portunities, and an exciting and varied practice. There is on those documents, but I also have worked on teams also sometimes a large volume of document review, but of less than five where I was visiting clients to conduct synthesizing the results of your review into a story that is interviews, preparing and attending presentations to helpful for your client’s legal arguments can be a satisfy- government regulators, and building out and executing ing and rewarding process. our overall investigation plan. But as a general matter, Practice Areas the work on a white collar investigation usually includes HF: The work is sophisticated and often “above-the-fold” a mix of document review with an eye toward building consequential. That is certainly one of the highs. Discov- out the story of what happened, preparing for and tak- ering the facts of any given case and piecing together ing interviews of key personnel, working with forensic the advocacy to support those facts – just as you would accountants to follow the money trail, preparing presen- with any litigation – is also one of the highs. tations detailing your findings for the client (which typically include the general counsel, the board of directors, Ivan Torres, associate: Whenever an investigation really or independent board members), and sometimes inter- gets moving the work typically gets very intense, but this acting with the relevant government regulators to best is also when you start to see all your hard work pay off. protect the rights and interests of your client. This payoff can either be realizing patterns in the documents and financial records that you didn’t appreciate HF: Associates review documents and develop the facts at the beginning of an investigation, taking an interview and timeline of the case. Associates also participate in where the interviewee’s body language and reactions subsequent witness interviews as well as draft pieces make it clear that they are surprised to see certain docu-

272 White collar litigation – Cahill www.chambers-associate.com

of advocacy, including presentations to regulators and pable of handling any sort of case or issue affecting our white papers. clients, whether it involves securities law, commercial litigation, contract disputes, insurance law, First Amend- ment matters, or anything else. So in short, the answer is “Whenever an investigation really gets that specialization is great but associates should also try moving the work typically gets very to get a broad experience on an array of matters early in intense, but this is also when you start their careers. to see all your hard work pay off.” HF: A litigator should make her own decision when to specialize, and in part the natural trajectory of a litiga- CA: What do partners do? tor’s career will determine it. Some experience many BM: Teach and mentor associates, provide guidance and matters as “generalist” for some time before affirmative- direction for the case, serve as the primary client inter- ly choosing to develop and refine a specific competency. face and take the lead in critical interviews, depositions On the other hand, others may inadvertently develop a and hearings. competency through working with the same team over a period of time. JS: Like associates, partners also work on all aspects of an investigation, but they will generally have more visibil- IT: At least at Cahill, there is no push to specialize early ity into and experience with clients’ and regulators’ think- on. If anything, litigation associates are encouraged to ing. Based on this experience, partners advise clients on maintain a diverse practice that includes both general the strengths and weaknesses of their cases, and make litigation and investigations work. This diversity gives you strategic decisions on how best to present them to regu- a different perspective and helps you see the big picture lators. on matters better. For example, the typically less formal path investigations take lets associates get earlier expe- CA: How does your work interact with general litiga- rience with interviews that becomes helpful down the tion? line when taking depositions. Likewise, having experi- JS: The misconduct underlying a white collar investiga- ence with the more adversarial environment of litigation tion can often lead to civil suits by shareholders or other is helpful as it makes you more critical in the way you private parties. More generally, working on litigation and approach an internal investigation. white collar matters requires much of the same skill set – attention to detail, sound judgment, and thoughtful criti- JS: At a firm like Cahill, a litigator has the flexibility to cal thinking abilities. specialize as soon or as late as they want, and there is no one-size-fits-all answer to how soon one “should” spe- BM: It’s not uncommon for white collar investigations to cialize. Rather, the answer will largely be determined by have litigation components and lead to shareholder de- whether they have a special interest in a particular prac- rivative suits, class actions, books and records demands tice area, and the opportunities and mentors that come and the like. Sometimes, those lawsuits are happening in up along the way in their career. parallel with our investigative work, which adds another layer of strategy to the matter. CA: Where can new associates expect to be in five years? IT: I personally have maintained a balance of at least one BM: It depends on the associate and his or her own in- white collar investigation and one more general litigation dividual goals and aspirations. If the associate wants matter since I started at Cahill because the two offer you to be partner, in their fifth year they should be thinking different experiences and challenges. about running cases and investigations, directing junior associates, interacting daily with clients, taking deposi- HF: Regulatory investigation and enforcement work of- tions, dealing face-to-face with regulators and arguing ten comes hand-in-hand with civil litigations concerning motions in state and federal courts. Partnership isn’t eve- Practice Areas Practice the same conduct. Thus, associates have the opportunity ryone’s goal, however, so it may well be that five years in, to experience a white collar matter from both the investi- an associate is ready for some other opportunity. Cahill gatory and litigation perspectives. alumni are distinguished in so many areas. Some serve at high levels in government, are in-house counsel at cor- CA: How soon should a litigator specialize? porate clients and financial institutions, or work in non- BM: Knowing everything possible about a particular fi- legal jobs in the art world, television and film. The point nancial product or some other fact or issue at the center is that we give our associates an invaluable experience of a case or investigation is indispensable. With that said, where they can take on as much responsibility as they at Cahill we also pride ourselves on being generalists ca-

273 www.chambers-associate.com White collar litigation – Cahill

want and can handle. That means they are well-trained with respect to certain complex assets (e.g., RMBS). As and tested, making them ready for anything. algorithms and automated processes begin to play a bigger role in banks and other large institutions, we expect HF: The hope is to leverage one’s training at the junior that regulatory authorities will continue focusing on al- level to become a highly effective manager/midlevel as- legedly predatory behavior in this area. sociate. IT: Over the past few years there has been more of a push IT: By your fifth year, associates working on white col- for companies to assist the government in investigating lar investigations and cases have usually worked on a which individual executives were involved in alleged mis- number of different matters that often relate to different conduct. In terms of big stories, over the last five years or industries, and in doing so have taken a number of inter- so you have the interest rates-related investigations and views, have been involved in presentations to both the prosecutions both here and in the UK, a number of anti- client and government regulators, and have also had the corruption investigations that focus on Latin America, chance to see a number of their investigations to a close, including, for example, the Petrobras scandal and the which typically will include settlement negotiations with fallout from the Mossack Fonseca leaks. the government and assisting companies with remedial efforts. CA: How should students brush-up on their white collar knowledge? JS: By my fifth year, I hope to develop the skills needed IT: Following the news, including legal news and blogs to be an effective manager of junior associates, and to be related to white collar work are helpful because these able to draw upon experience in a variety of cases involv- resources give you pretty good insight into the trends going different stages of litigations and investigations, and ing on. Law schools also often have great guest speakers different subject matters. who have either worked on these cases on the defense side or have prosecuted these cases.

“Having experience with the more JS: Keeping up with news stories about government in- adversarial environment of litigation is vestigations of individuals and institutions within the fi- helpful as it makes you more critical nancial services industry, and developments in the regu- in the way you approach an internal latory environment. investigation.” HF: Attention to detail and a good attitude, always, and a willingness to learn and adapt – being part of an investi- CA: What personal qualities make good white collar gation team requires learning the client’s business. lawyers? BM: Like an investigative reporter, a white collar associate should be inquisitive above all else and have a desire “Like an investigative reporter, a white to work hard, dig deep and gather and understand the collar associate should be inquisitive facts of a case. White collar work is deeply fact-intensive, above all else and have a desire to so it’s critical that we leave no stone unturned and under- work hard, dig deep and gather and stand all aspects of the case, inside and out. understand the facts of a case.” Practice Areas IT: Curiosity and a willingness to learn and think on your feet. Often when you start an investigation you will have CA: What are your tips for passing the interview pro- little background knowledge on the workings of a par- cess? ticular industry. To understand the motivations of the BM: The most successful interviewees are the ones who people who work at the company you have to really un- can speak passionately about their 1L summer experi- derstand the work they do. ence, their interest in the law and being an associate at a firm like ours. Even if students don’t have specific white CA: What are the trends and big stories in the white collar experience – which is understandable as a rising 2L collar market? – they will be successful in the interview process if they BM: A continued focus by the DOJ and SEC on FCPA and show genuine excitement about starting a career at our financial products investigations. firm, getting their hands dirty and learning how to be litigators and investigators working at the highest level on HF: Coming out of the financial crisis, we have seen regu- the most impactful cases. lators focus on benchmark rigging (e.g., LIBOR, foreign exchange, and others) as well as fraud more generally

274 www.chambers-associate.com White collar litigation – Cahill

HF : Demonstrate how you are self-motivated and able IT : I have been able to work on a range of different pro- to multi-task with different projects and meet deadlines. jects including FCPA work, securities litigation, complex fi nancial litigation, and First Amendment matters. By al- JS : As an interviewer, I look for candidates who can dem- lowing associates to develop their own practice within onstrate to me that they are willing to work hard, self- litigation or corporate rather than having more rigid de- motivated, and easy to get along with in a team setting. partments, Cahill allows associates more fl exibility with the experiences they get and with partners and clients IT: Be well prepared to discuss your own background they get to work with. I have also found Cahill to be very and interests and also why you are interested in work- willing to let associates take on work that typically would ing at the fi rm you are interviewing at. Also, be yourself, be reserved for more senior associates when they show remember that interviews are not only about fi nding the an interest and an ability to take on greater responsibil- smartest candidate but also about fi nding people that ity. will be good members of a team. HF : With excellence comes opportunity: Cahill staffs CA: Describe the opportunities unique to Cahill. cases leanly and thus associates may be able to assume BM : Cahill, unlike any other fi rm I know, affords its associ- more responsibility early, at a more junior level. Associ- ates the opportunity to take on as much responsibility as ates also benefi t from the collegial environment and they want and can handle. We have a free market system mentorship by more senior attorneys, including partners. that allows litigation or corporate associates to work on anything that interests them within those departments, JS : Cahill is a place where the self-motivated and the ca- whether it be securities law, commercial litigation, inves- pable thrive. If you demonstrate that you are ready, you tigations, bonds deals, M&A, or whatever else is brewing will be given the opportunity to take on more substan- at the time. I chose Cahill because I wanted to have some tive responsibilities regardless of your seniority level. measure of control over my career and because I wanted The free market system also affords associates a level the ability to choose the type of cases I worked on and of control over their career trajectory, and allows associ- the people with whom I worked. As a result, my practice ates to seek out mentors they are interested in learning is broader and more diverse than I ever could have im- from. agined coming out of law school. Looking back, I know I made the right choice and I could never see myself at any other fi rm in the world.

Authors

Brian Markley Helena Franceschi Junine So Ivan Torres Partner Partner Associate Associate Practice Areas Practice

275