www.americanlawyer.com DECEMBER 2008 A MOMENT’S NOTICE An inside look at how Weil Gotshal put together the Lehman bankruptcy in record time. By Ben Hallman LAW FIRM LEADERS SURVEY: Doubts About 2009 THE CHANGE AGENDA n Going public n Rebelling clients n Managing talent n Unrelenting technology Weil’s Harvey Milleriller Weil Gotshal put together the largest bankruptcy in U.S. history in record time. It was a fitting tribute to the firm’s biggest institutional client. A MOMENT’S NOTICE By Ben Hallman By the close of the second week of September, investors had all but given up on Lehman Brothers Holdings Inc. What Stephen Dannhauser, Thomas Roberts, Harvey Miller, and Lori Creditors wanted the 158-year-old investment bank to put up additional Fife didn’t know was that their opinion about whether and when Lehman collateral to cover its bets in the derivatives market. Customers were should file for bankruptcy protection—they had planned to advise the scrambling to close accounts. Traders couldn’t move the firm’s commercial company to wait, to continue to look for a buyer—didn’t really matter paper, or settle trades. In its most visible sign of distress, Lehman’s share anymore. That decision had already been made for them. price tumbled in those last days like a sick pigeon from the sky. As the cab crawled south toward lower Manhattan, Roberts, a 62-year- These grim facts of life weren’t lost on four senior partners from Weil, old M&A lawyer with a Dallas twang, got a phone call from a banking client. Gotshal & Manges LLP. On Sunday, September 14, they sat in a taxi, stuck in Then a second one called. Both clients had been at the Fed that afternoon traffic in lower Manhattan. They were headed to the Federal Reserve Bank as government officials made a final plea to the banking community to save of New York. The Weil lawyers knew that without a buyer or a government Lehman. The clients said essentially the same thing, “We’ve been told by bailout, a Lehman bankruptcy was possible—hell, even likely. After all, the the Fed that Lehman’s going to file tonight.” firm had spent the previous few days planning for that very possibility. The Weil lawyers were floored. The two bankruptcy attorneys in the group, Miller and Fife, along with Dannhauser, the firm chairman, had met briefly with Fed officials the day before. The lawyers had told the Fed that they were preparing for a possible bankruptcy, but that the planning had barely begun. It was a short meeting, and the Weil partners walked away with the impression that bankruptcy was not in the cards. “It was treated as a hypothetical,” Fife recalls. “We gave no indication that we were ready to file.” The lawyers finally arrived at the Federal Reserve’s fortress-like headquarters near Wall Street almost an hour after they had left their midtown office. The attorneys persuaded a nervous cabbie to drive them past the news cameras and armed guards into the Fed’s parking garage. The quartet entered the building as Vikram Pandit—the Citigroup Inc. chief executive and one of the many bankers the government wanted to enlist in helping Lehman—walked out. The Weil lawyers were escorted to a crowded conference room. As they walked in, Herbert “Bart” McDade, Lehman’s chief operating officer, was making an impassioned plea to government officials to save his bank. “You don’t understand the consequences,” McDade said, according to several onlookers. “You don’t understand what will happen.” Fed officials, the Weil lawyers quickly learned, would not sponsor a buyer for the troubled bank, nor would the government back the bank while it explored other options. Furthermore, federal officials were encouraging Lehman’s parent company to file for bankruptcy immediately, before midnight that day, if possible, to limit the damage to the Asian stock markets. Weil earned $40–50 million The Weil lawyers, with Miller leading a year in fees from Lehman, the way, made their best arguments to the but in a bankruptcy overseen by government representatives. They weren’t Stephen Dannhauser ready to file. A precipitous bankruptcy filing (left) and Harvey Miller, would mean Armageddon for the financial the firm is expected to earn four times that Amount. Photographs By Tim Knox sector. It would lead to a meltdown in equity markets around the world. would be a breakthrough, and would allow the New York–based firm to The federal officials, including Thomas Baxter, the general counsel of grow multiple practices at once. Despite Glucksman’s brush-off, Lehman the Federal Reserve, called a recess. (There were also representatives from Brothers passed along some work. Over the years the relationship grew. the U.S. Department of the Treasury and the Securities and Exchange When it failed, Lehman was Weil’s biggest client, accounting for $40 million Commission in the overcrowded room. The federal agencies didn’t respond to $50 million in fees annually, or about 4 percent of Weil’s gross revenue. to requests to comment for this story.) The government officials left for By the summer of 2008, after months of turmoil and falling stock prices, nearly an hour. When they returned, their message hadn’t changed. The Lehman’s management decided that it needed to sell assets to raise capital. officials strongly urged Lehman to file for bankruptcy protection that night. Michael Lubowitz, a Weil M&A partner, was tapped by M&A chief Roberts “They said it was ‘a critical part of a program they wanted to roll out,’ ” says to explore sale options for a stake in Lehman’s investment management Miller, who at 75 is the éminence grise of the bankruptcy bar. They didn’t division, including its crown jewel, Neuberger Berman, Inc., as well as the explain what that program entailed, he says. It felt, Miller says, “like we bank’s private equity group. were facing a hanging judge.” This wasn’t the only potential deal. Weil was also working on the possible spin-off of Lehman’s real estate assets. Simpson Thacher & Bartlett was exploring other deal possibilities, including the sale of some or all of the Lehman Brothers entered bankruptcy holding company. with assets of $639 billion. This is more than the annual gross As the summer waned, the pressure to complete a deal—fast—grew. domestic product of all but the 17 wealthiest nations. The bank’s failure So did the likelihood that a sale of part of Lehman’s business wouldn’t be shocked world stock markets and triggered a credit freeze as banks, for a enough to stanch the bleeding. On Wednesday, September 10, Lehman while, simply stopped lending to each other. released its quarterly earning numbers early with the hope of easing investor In the weeks since, as the world’s economy has teetered on the edge of fears. The announcement showed that the bank lost $4 billion in the third disaster, federal officials have faced a steady drumbeat of recrimination and quarter. The share price continued to fall. second-guessing. Why, many have asked, did the federal government allow At some point that week—Dannhauser declined to say what day— Lehman to fail? And why did it have to file for bankruptcy so quickly? Steven Berkenfeld, a Lehman managing director, called with a request. He Treasury secretary Henry Paulson recently said in an interview with The wanted Weil to quietly begin preparing for a bankruptcy. (Berkenfeld, now New York Times that he didn’t have the authority to bail out Lehman. By at Barclays plc, declined to comment.) Dannhauser asked Miller to take law, he said, the Federal Reserve could only make a significant loan to the the lead, but there wasn’t much the bankruptcy partner could do until he bank if it had enough healthy assets to serve as collateral, which Paulson got access to Lehman’s books and its executives. At this point, Lehman felt said it did not. that a Chapter 11 filing was a remote possibility, and so it didn’t invite the Lawyers and bankers involved in the negotiations over the weekend of bankruptcy lawyers to its midtown headquarters, out of fear that word of a September 13 say they never heard that explanation. They say that officials potential filing would leak and trigger a panic. negotiating on Paulson’s behalf—when they were asked why the government On Friday, September 12, Lehman’s stock price plunged 90 percent. wouldn’t back a sale, as it had done with Bear Stearns Companies Inc. in At about 6 p.m., Fed officials and Treasury secretary Paulson called for an the spring—never mentioned Lehman’s bad assets. Instead, Lehman emergency meeting of some of Wall Street’s top bankers at the New York bankers and lawyers heard the “great moral hazard” argument. The federal Federal Reserve office. They told the bankers that the government would government didn’t want to establish the bad precedent of rescuing failing not bail out Lehman, and that it was up to Wall Street to sort out the mess, banks. Without a government guarantee, Lehman was cooked. according to press reports. But it was London that almost saved the day. What would have happened if Lehman had waited a few days to file, Barclays, a British bank that had been eyeing various parts of the Lehman or even a few weeks? One lawyer who participated in the negotiations for business for months, was interested. That evening, Simpson Thacher a Lehman sale that weekend says there wasn’t a good alternative to filing.