United States - IFLR1000

958 

United States 


Chamber of commerce: 

US Chamber of Commerce 

1615 H Street NW 

Washington DC 20062-2000 


Tel: +1 202 659 6000 

Fax: +1 202 463 5836 

Web: www.uschamber.com 

Professional body: 

American Bar Association 

740 15th Street NW 

Washington DC 20005-1019 


Tel: +1 202 662 1000 

Web: www.abanet.org 

Stapled finance packages under 

scrutiny 

Richard Hall 

Cravath Swaine & Moore 

New York 

The use of stapled financing in merger and 

acquisition transactions, both in the US and 

in Europe, has increased over the last several 

years. As a result of recent legal developments 

in the US, however, both sell-side clients and 

financial institutions are rethinking their attitudes 

toward stapled financing and this could 

lead to changes in how and when stapled 

financing is offered. 

In M&A parlance, stapled financing is a 

proposed financing package offered by the 

seller’s financial adviser to substantially all 

bidders in an auction. Originally, the proposed 

terms of the financing package were 

usually distributed with (or stapled to) the 

offering memorandum distributed to bidders 

in the auction. The timing of distribution 

of the proposed stapled financing package 

varies based upon particular considerations 

in each auction. Stapled financing 

became noticeable in the US a number of 

years ago, when well-capitalized banks with 

experience in leveraged acquisition lending 

sought to use their balance sheet strength to 

win mandates to act as financial advisers in 

sell-side auction assignments. The marketing 

message from banks/potential financial 

advisers to potential sell-side clients was as 

simple as “retain us, and we will facilitate 

the auction by offering stapled financing”. 

The banks/potential financial advisers 

argued that the availability of a stapled 

financing package would assure potential 

private equity sponsor acquirers that the 

transaction could be financed and so 

encourage the sponsors to participate in the 

auctions. The stapled financing product was 

also pursued by banks that wished to 

increase their exposure to the leveraged 

acquisition lending market by offering 

www.iflr1000.com 

financing to large private equity sponsors 

competing in auctions. 

While no reliable statistics are available, 

the US market perception is that few stapled 

financing packages are used by successful 

bidders in auctions. Equally, there is no evidence 

that the offering of a stapled financing 

package facilitates more aggressive bidding in 

auctions, at least by large private equity 

sponsors. There is some anecdotal evidence 

that the availability of a stapled financing 

package in an auction might encourage more 

aggressive bidding by strategic buyers in auctions, 

as the presence of a stapled financing 

package could cause a strategic buyer to 

regard competition from private equity 

sponsors as more credible. There is also 

strong anecdotal evidence that the offering 

of a proposed financing package by the seller’s 

financial adviser acts as a price-signalling 

mechanism in the auction. A sophisticated 

private equity sponsor competing in an auction 

with a stapled financing package should 

be able to reverse engineer from the stapled 

financing package (in particular, the ratio of 

debt to Ebitda) to derive the estimate of the 

seller’s financial adviser as to the price that 

could be paid by a private equity sponsor for 

the business being auctioned. This price-signalling 

effect could be reducing the variability 

of bids submitted in auctions by private 

equity sponsors and causing private equity 

sponsors not to bid in situations in which 

their proposed bid would be below the price 

level signalled by the stapled financing package. 

Stapled financing raises a number of legal 

issues for the seller and for its financial adviser/stapled 

financing source. Most of these 

issues revolve around broad concepts of conflict 

of interest. First, the seller’s financial 

adviser will be deriving additional compensation 

from the transaction as a buy-side 

financing source; this may be viewed as providing 

an inappropriate incentive on the part 

of the seller’s financial adviser to recommend 

a transaction. Traditionally, however, this has 

not been a practical concern. Most financial 

advisers with sell-side mandates are compensated 

on a contingent basis anyway, so the 

financial adviser always has an incentive to 

recommend a transaction rather than recommend 

the seller withdraw the property from 

sale. At least in the US, courts have consistently 

approved the use by sellers of contingent 

fees for sell-side financial advisers on 

the grounds that such fees more properly 

align the interests of the adviser with those of 

the seller. The second concern arises from the 

fact that the seller’s financial adviser is 

financing one bidder in an auction and so 

could receive greater compensation based 

upon who wins the auction regardless of the 

price. This could be seen to create the potential 

for conflict of interest on the part of the 

financial adviser with respect to the management 

of the auction process by motivating 

the financial adviser to favour one bidder 

over another. Once again, assuming that the 

fact of buy-side financing has been properly 

disclosed to the seller client, few sellers have 

been concerned by this potential conflict of 

interest in the average transaction. In most 

auctions, the question of who is the winning 

bidder is clear, and it is only in the rare situation 

that the advice of the seller’s financial 

adviser will be material to the decision of the 

seller. A third issue is that of the perception 

of the bidders. In part in response to the concern 

discussed above, bidders have expressed 

concern that they have felt pressure to pursue 

the stapled financing package to ensure equal 

treatment in the auction. 

Most of these concerns relate not to the 

offering by the seller’s financial adviser of the 

stapled financing package but to the seller’s 

financial adviser providing any financing at 

all. In the current market, with private equity 

sponsor M&A activity high and the number 

of banks willing and able to lend large 

amounts in leveraged acquisition financings 

more limited, the possibility of a commercial 

bank providing buy-side financing while also 

providing sell-side advice is quite high, even 

without stapled financing. By the middle of 

2005, most sellers and their legal counsel had 

become comfortable with sell-side financial 

advisers offering their stapled financing pack- 

2010 EDITION

| United States 

959 

age and ultimately providing financing to a 

select number of bidders in auction situations. 

Then along came Toys “R” Us. In 2005, 

Toys “R” Us Inc, a US public company, conducted 

an extensive review of its strategic 

options and ultimately agreed to be acquired 

by a club of private equity sponsors led by 

Kohlberg Kravis Roberts & Co. In a legal 

challenge to this proposed acquisition, the 

public stockholders of Toys “R” Us made a 

variety of allegations, including a claim that 

the financial adviser to Toys “R” Us, Credit 

Suisse First Boston, suffered from a conflict 

of interest arising out of its possible role in 

financing the KKR-led group. During the 

auction process, CSFB raised the possibility 

of providing buy-side financing to potential 

bidders. The board of directors of Toys “R” 

Us rejected that possibility and insisted that 

CSFB not discuss potential financing with 

the KKR-led group, or any other bidder, 

before approval of the merger. After approval 

of the merger and execution of a merger 

agreement between the KKR-led group and 

Toys “R” Us, CSFB again sought permission 

to finance the KKR-led group. In response to 

this second request, the board of directors of 

Toys “R” Us agreed. 

The Delaware Court characterized this 

set of facts as “unfortunate” in that the Court 

believed these facts raised the possible perception 

that CSFB’s advice to the seller 

throughout the auction process was tainted 

by a desire on the part of CSFB to obtain 

additional fees from financing the successful 

bidder. The Court ultimately held that, 

notwithstanding the appearance of conflict 

raised by CSFB’s requests for permission to 

finance potential bidders and the fact that 

CSFB ultimately did provide financing to 

the successful bidder, the advice of CSFB was 

not in fact motivated by the desire to generate 

additional fees from providing buy-side 

financing. In doing so, however, the Court 

made the following statement: 

“By stating this, I do not want to be perceived 

as making a brightline statement. One 

can imagine a process when a board decides 

to sell an entire division or the whole company... 

when roles on both sides [sell-side 

adviser and buy-side financing source] for 

the investment banker would be wholly consistent 

with the best interest of the primary 

client company [the seller]. In general, however, 

it is advisable that investment banks 

representing sellers not create the appearance 

that they desire buy-side work, especially 

when it might be that they are more likely to 

be selected by some buyers for that lucrative 

role than by others.” 

The Toys “R” Us board of directors 

received fairness opinions from CSFB and 

also from Duff & Phelps, and there was no 

claim that Duff & Phelps lacked independence. 

The challenge to CSFB, and the 

Court’s observations, were directed solely to 

the possibility that CSFB’s conflict of interest 

would have tainted its advice with respect 

to the conduct of the auction. Toys “R” Us 

also involved a difficult judgment as to the 

conduct of the auction – whether to reopen 

broadly the auction process in response to a 

decision by the board late in the process to 

sell the entire company rather than just a 

major division. 

These judicial observations led to an 

immediate and extensive review by US 

investment banks and their counsel, and sellers 

and their counsel, of the propriety of 

what had become conventional stapled 

financing arrangements. Some commentators 

suggested that the Toys “R” Us decision 

would lead to the complete demise of stapled 

financing, as well as the end of the practice 

of sell-side advisers providing any buy-side 

financing outside the stapled financing context. 

As time has passed, however, cooler 

heads appear to have prevailed, and it now 

seems the Toys “R” Us decision will result in 

fewer changes in stapled financing practice 

than had initially been feared. 

First, as a practical matter in the stapled 

financing arena, US financial advisers and 

sellers (and their counsel) are reading the 

Toys “R” Us observations as limited to situations 

involving the sale of the entire company 

or at least to M&A transactions that are 

substantial relative to the size and sophistication 

of the seller. Anecdotal evidence suggests 

that now, in mid-2006, sellers and their 

financial advisers remain generally unconcerned 

about the use of stapled financing 

packages in small sell-side auction assignments. 

This seems to represent a sensible balancing 

of risk and reward. In a small sell-side 

auction, the seller will obviously be less 

dependent upon its financial adviser for 

advice with respect to selection among competing 

bids and with respect to the conduct 

of the auction, while the rewards to the seller 

from a properly conducted auction with 

aggressive bidding by private equity sponsors 

would seem enough to offset any risks. 

Market practice in the US does not, however, 

seem to be consistent with respect to 

the availability of stapled financing, or of any 

other form of buy-side financing, in situations 

directly analogous to Toys “R” Us: the 

sale of the entire company. Boards of directors 

of target companies remain justifiably 

concerned about the comments in the Toys 

“R” Us decision. One point from the Toys 

“R” Us decision, as discussed above, was that 

the challenge related to the conduct of the 

auction and not merely to the fairness of the 

final consideration price. For this reason, it is 

difficult for boards of directors of target 

companies (and their counsel) to feel comfortable 

that any conflict of interest created 

through the sell-side adviser also providing 

buy-side financing can be solved with a second 

opinion from another, independent 

financial adviser. It would, in theory, be 

acceptable for the target board to have two 

advisers equally involved in the auction 

process, but this is a difficult arrangement in 

practice and it is also difficult to justify the 

additional cost and transaction complexity 

for the questionable benefit to the seller of 

the availability of the stapled financing package. 

An additional factor in the US is the 

increasing scrutiny of the independence of 

directors and their advisers in considering 

and approving M&A transactions that raise 

the spectre of a management conflict of 

interest (such as a leveraged buyout with 

ongoing management participation). 

Because any decision by the target board to 

approve the offer of a stapled financing package 

must occur at an early stage in the auction 

process, at a time when the board does 

not have insight into the likely outcome of 

that process, the target directors must remain 

conscious of the need to maintain the independence 

of their financial adviser and the 

integrity of the auction process. 

The US banks now have policies with 

respect to stapled financing in the context of 

a sell-side assignment involving an entire 

public company. At least for the moment, it 

seems that conservatism on the part of 

boards of directors is setting the bar at a level 

that is not permitting sell-side advisers to 

provide buy-side financing, at least in the 

absence of a second investment bank on the 

sell-side that is fully involved in any auction 

process. 

2010 EDITION www.iflr1000.com

960 

United States | Capital markets 

Capital markets – debt and 

equity 

Recommended firms 

Tier 1 

Cleary Gottlieb Steen & Hamilton 

Davis Polk & Wardwell 

Sullivan & Cromwell 

Tier 2 


Latham & Watkins 

Shearman & Sterling 

Simpson Thacher & Bartlett 

Skadden Arps Slate Meagher & Flom 

Tier 3 

Cahill Gordon & Reindel 

Gibson Dunn & Crutcher 

Sidley Austin 

Weil Gotshal & Manges 

Tier 4 

Debevoise & Plimpton 

Dewey & LeBoeuf 

Fried Frank Harris Shriver & Jacobson 

Kirkland & Ellis 

Mayer Brown 

Tier 5 

Morrison & Foerster 

O’Melveny & Myers 

Paul Weiss Rifkind Wharton & Garrison 

White & Case 

Tier 6 

Baker Botts 

Jones Day 

King & Spalding 

Vinson & Elkins 

Wilson Sonsini Goodrich & Rosati 


Capital markets – high-yield 

debt 


Tier 1 


Tier 2 




Tier 3 





Tier 4 






White & Case 

Tier 5 

Baker Botts 

Mayer Brown 

Paul, Weiss Rifkind Wharton & Garrison 


Capital markets – structured 

finance and securitisation 


Tier 1 

Mayer Brown 

Orrick Herrington & Sutcliffe 

Sidley Austin 


Tier 2 

Cadwalader Wickersham & Taft 



Tier 3 




Tier 4 


Dechert 

Freshfields Bruckhaus Deringer 

Schulte Roth & Zabel 

Stroock & Stroock & Lavan 

White & Case 

Tier 5 

Hunton & Williams 


Milbank Tweed Hadley & McCloy 





US capital markets suffered a predictable 

slowdown in the wake of the credit crisis. The 

collapse of Lehman Brothers and the subsequent 

shockwaves it sent through the investment 

banking industry left the market without 

appetite for the majority of debt and equity 

issuances, particularly anything below 

investment grade. “The markets have been 

anaemic,” says one partner. “I think people 

who really need access to markets are still 

doing it, they’re just doing it very carefully.” 

The harshest of market withdrawals was 

reserved for the structured finance market, 

whose products still carry their toxic associations 

with the greater public for low visibility 

collateralised debt obligations (CDOs) and 

subprime mortgage investments. 

Such dislocations in the market have challenged 

the operating models for US firms, 

particularly for those with highly-leveraged 

capital markets departments. The absence of 

transactional activity that began in structured 

finance last year progressively carried over into 

general debt and equity departments through 

2009, contributing to the massive layoffs of 

associates and staff that occurred at firms like 

2010 EDITION

Capital markets | United States 

961 

Latham & Watkins and White & Case 

throughout the year. Partners describe the 

downturn as forcing many capital markets 

programs into offering a diverse range of 

products or looking to acquire from lateral 

hires the talents to do so. 

Those with close ties to financial institutions 

saw some reprieve from an otherwise 

barren market. Rescue financings for lenders 

like Citigroup and Merrill Lynch in 2008 

evolved into negotiations with the US 

Department of Treasury over convertible 

equity stakes in distressed financial institutions 

under the Troubled Asset Relief Program 

(Tarp). Still, even these high-profile types of 

transactions were fleeting. “Once those deals 

worked their way through the pipe, there was 

a real kind of drying up of new activity, with 

specific spots in the market that would open 

up for [a] very brief window,” describes one 

partner. 

While the high-yield and broader debt & 

equity markets return from their drastic 

reductions in the wake of Lehman, structured 

finance and securitisation has yet to reinvent 

itself in the wake of collapse. “Six months ago, 

if you went into the market with something 

called a securitisation, people would have just 

thrown up on it. They didn’t want anything to 

do with something called a securitisation,” 

remarks one lawyer. Partners note the back-tobasics 

mentality for any new structured products, 

highlighting the increase in diligence 

and collateralisation for even the most basic 

products entering the market. 


Cahill Gordon is a firm centred on the highyield 

market. Complementary capital markets 

and institutional lending experience is seen as 

secondary by competitors, many of whom still 

view the firm as the go-to option for highyield 

underwriting syndicates. “I think they 

are still, in my view, the premiere player in 

that area,” says one competitor. This focus on 

debt issuances, however, was cause for concern 

in a year in which the capital markets, 

and high-yield issuances in particular, were 

shelved due to recessionary fears. 

Issuance windows did occur sporadically, 

however, in 2008 and early 2009. August 

2008 saw Cahill representing the initial purchasers 

of several high-yield issuances for the 

complex spinoff of three companies from 

IAC/InterActive. First, Cahill advised 

JPMorgan Securities, Merrill Lynch and Bank 

of America Securities on the $300 million 

issuance of 10.8% notes. A similar $240 million 

offering was conducted for cable retailer 

HSN through 11.3% notes; Cahill advised 

Banc of America Securities, JPMorgan 

Securities, and Morgan Stanley. The offerings 

were conducted in tandem with the structuring 

of numerous term loans and revolving 

credit facilities that allowed Ticketmaster, 

HSN, and Interval Acquisition Corporation 

to break from their parent, IAC. James Clark, 

Daniel Zubkoff, and William Miller led the 

Cahill team on the transaction. 

Another prominent file for Cahill came in 

its representation of the dealer managers for 

what would be the largest private debt swap 

ever executed. Hoping to access newly available 

Troubled Asset Relief Program (Tarp) 

funds from the Treasury, GMAC and subsidiary 

Residential Capital began the exchange 

of 33 series of outstanding bonds to enable 

auto financier GMAC to convert to a bank 

holding company. GMAC’s exchange included 

$11.9 billion in new securities, $2.6 billion 

in preferred stock with an aggregate liquidation 

preference, and $2 billion in cash. Those 

exchanging Residential Capital bonds 

received $1.2 billion in new securities in 

GMAC and an additional $500 million in 

cash. James Clark, Noah Newitz, and Corey 

Wright advised Bank of America, Barclays, 

Credit Suisse Securities, Deutsche Bank 

Securities, Goldman Sachs, JPMorgan, 

Morgan Stanley, and Royal Bank of Scotland 

on the transaction. 

Leading lawyers 

James Clark 

William Hartnett 

Douglas Horowitz 

Michael Michetti 

Jonathan Schaffzin 

John Tripodoro 

Daniel Zubkoff 

Cleary Gottlieb Steen & 

Hamilton 

Even in the toughest of markets, Cleary comes 

out on top. The firm has built a broad, internationally-focused 

capital markets practice, 

which peers say is one of the most competitive 

in the world. With 12 offices worldwide, it’s 

not hard to see why. One competitor affirms 

this reputation, saying: “Cleary is an exceptional 

firm, with an issuer and underwriter 

practice that is the best there is.” 

Indeed, the economic crisis has brought a 

predictable flight to quality that makes the 

firm part of a small group of preferred counsel 

for institutions like Barclays and 

Citigroup, and government entities like the 

Federal Reserve Bank of New York and the 

Treasury Department. Senior talent like Alan 

Beller, Raymond Check, Jeffrey Karpf, and 

Allan Sperling are all recognised by competitors 

as representative of the deep bench Cleary 

employs as part of its US capital markets 

efforts. 

Citibank has retained the firm on a number 

of high-profile transactions in the last year, 

thanks in part to the relationship established 

between the bank and Jeffrey Karpf. Most 

recently, Cleary represented Citigroup Global 

Markets as the leaders of an underwriting syndicate 

for an international debt offering by the 

bank. This was the first debt offering by 

Citigroup since the summer of 2008, with the 

10 year, 8.5% notes raising an estimated $2 

billion. Cleary also advised Citigroup in their 

private placement of $25 billion in preferred 

stock to the Treasury Department under the 

Tarp program in October 2008. Subsequently, 

the firm aided Citigroup in the exchange of 

the Treasury’s $27.5 billion in preferred holdings 

into common stock in the bank, bolstering 

the bank’s equity following the results of 

financial stress tests conducted by the government. 

Other underwriting work included the 

firm’s March 2009 representation of Barclays. 

The investment bank underwrote a threetranche, 

$5 billion debt offering for oil & gas 

company Chevron. The issuance followed a 

rash of equity offerings for Chevron earlier in 

the month. 

The international reach of Cleary’s practice 

was evident in the firm’s cross-border representation 

of the Brazilian mining company 

Vale. In what is the largest equity offering ever 

made by a Brazilian company, returning client 

Vale issued common and preferred American 

depository shares worth an estimated $11.45 

billion. 

And despite the barren structured finance 

market, Cleary’s structured products group 

was able to come up with deal flow. Led by 

Robin Bergen, the firm acted for collateral 

manager Invesco Senior Secured Management 

during the formation of a $359 million collateralised 

debt obligation (CDO). 


Alan Beller 

Raymond Check 

William Gorin 

Jeffrey Karpf 

Leslie Silverman 

Allan Sperling 


Cravath is an historic leader in the capital 

markets with an international practice that 

brings the firm high-level work in the US and 

Latin America specifically. This is some 

accomplishment, especially when considering 

the firm has achieved this reputation with 

only New York and London offices – a rarity 

among the global firms it competes with. 

“They’re an incredibly high-quality firm,” says 

one peer. 


962 


Since becoming a partner in 2007, Craig 

Arcella has quickly built a strong reputation 

with some of his senior competitors. One 

remarks: “I’ve worked with him both domestically 

and internationally, and I always enjoy 

working with him because he’s very pragmatic 

and smart. He always seems to represent his 

clients very well.” 

Cravath expanded its practice further this 

year with the internal partnerships of Alyssa 

Caples and Minh Van Ngo announced in 

January 2009. Another noteworthy personnel 

development is the return of William “Bud” 

Rogers to New York from Cravath’s London 

office, where he served as the managing partner. 

One client describes the firm’s attributes 

as, “Excellent responsiveness among the partners 

and associates. Top quality legal advice 

and the contacts they have when necessary 

when things go wrong. There are few firms in 

the country that can get things done when 

they have to get done, and these guys are one 

of them.” 

Cravath’s historic relationship with 

JPMorgan has kept the firm busy throughout 

the year. William Fogg advised JPMorgan 

Securities as the bookrunner and underwriter 

for an offering of common stock in its parent 

company, JPMorgan Chase. The $11.5 billion 

offering was executed in September 2008, 

financing in part the investment bank’s acquisition 

of Washington Mutual. 

Acting again for the underwriters, Cravath 

advised on the $12.6 billion common-stock 

offering of Wells Fargo, the largest follow-on 

offering executed to date. Performed to supply 

financing for Wells Fargo’s announced 

takeover of Wachovia, the issuance was sold to 

an underwriting syndicate that included 

Goldman Sachs, JPMorgan, Morgan Stanley, 

UBS Investment Bank, and Wachovia 

Securities. 

Cravath’s Andrew Pitts carried on the 

firm’s strong underwriting reputation with his 

involvement in the March 2009 offering of 

senior unsecured notes by the pharmaceutical 

manufacturer Pfizer. With a syndicate consisting 

of Banc of America Securities, Barclays 

Capital, Citigroup, Goldman Sachs and 

JPMorgan, Pfizer’s $13.5 billion issuance 

helped fund its subsequent acquisition of rival 

Wyeth. 

Issuer work for the firm included its representation 

of the transportation logistics company 

CSX. Ronald Cami and Joel Herold 

advised CSX, structuring a debt offering of 

10-year notes worth $500 million. 


Stephen Burns 

Ronald Cami 

William Fogg 


Kris Heinzelman 

Andrew Pitts 

William Rogers 


Davis Polk’s capital markets expertise with 

financial institutions acts as a complement to 

the firm’s capabilities in lending and regulatory 

matters. The firm’s Financial Institutions 

Group (FIG) receives praise from past clients 

as a practical working model for the complex 

problems resulting from the financial crisis. 

One recent example of this is the work performed 

by the firm in relation to the government 

bailout of American International 

Group (AIG). Davis Polk advised the Federal 

Reserve Bank of New York and the US 

Treasury Department in several issuances and 

recapitalisation efforts for AIG. Preferred 

shares were initially issued by AIG to the 

Treasury, giving the government body a 

79.9% stake in the US insurer. A second 

issuance of preferred shares worth $40 billion 

was also made through the Treasury’s Tarp 

program. This second round of shares was 

subsequently purchased by the Treasury in 

April 2009, in an effort to stabilise AIG’s balance 

sheet. John Brandow and Jeffrey 

Schwartz led the capital markets aspects of the 

transaction for the Davis Polk team. “There 

are not that many others at their level of quality,” 

remarks one client. 

Recently, Davis Polk used its nation-wide 

presence in the US to conduct a debt offering 

for Oracle through its office in Menlo Park, 

California. Set into tranches of five, ten and 

30-year notes, Davis Polk conducted the $4.5 

billion offering for the software company with 

an underwriting syndicate that included Banc 

of America Securities, Morgan Stanley, and 

Wachovia. 

The firm was also recently retained by 

Morgan Stanley as issuer’s counsel in a common 

stock offering aimed at providing the 

investment bank with the necessary equity to 

repay government Tarp funds. Davis Polk 

constructed the issuance of 85 million common 

shares, as well as negotiating pre-emptive 

rights for purchasers Mitsubishi UFJ 

Financial Group and the China Investment 

Corporation, in what ultimately earned 

Morgan Stanley $2.4 billion in fresh equity. 

Exercising its cross-border muscle as 

underwriters’ counsel, Davis Polk found itself 

involved with a recent debt offering by the 

Province of Ontario, Canada. The provincial 

government netted $4 billion through the sale 

of five-year bonds to a syndicate that included 

Deutsche Bank, HSBC Securities, JPMorgan 

Securities, and RBC Capital Markets. 


John Brandow 

Richard Sandler 

Richard Truesdell 


The absence of capital markets activity, particularly 

in debt issuances, created a difficult 

market landscape for Latham & Watkins 

through the worst of the financial crisis. In 

February 2009, the firm announced 190 

redundancies from its associate ranks. While 

the affected US associates were firm-wide, 

rather than specifically centred in the capital 

markets practice, the loss is viewed by competitors 

as a disruption to what is traditionally 

a prominent practice for the firm. 

One notable addition to the firm is 

Alexander Cohen, who joins Latham’s corporate 

finance group in Washington DC. Cohen 

was formerly the chief of staff at the Securities 

and Exchange Commission (SEC) since 2006. 

Elsewhere in the firm, partners Kirk 

Davenport and Marc Jaffe are recognised by 

peers for their deal execution skills in this 

year’s demanding market. 

Despite its forced staff reductions, Latham 

& Watkins resumed its usual presence in what 

capital markets work there was in late 2008 

onward. The firm was retained in two offerings 

in the real-estate sector as issuers’ counsel 

for Kimco Realty and the AMB Property 

Corporation during a brief market window. 

Offering more than 105 million shares of 

common stock on the New York Stock 

Exchange (NYSE), Kimco’s April 2009 offering 

was valued at $747 million. Similarly, 

AMB’s 47 million common-stock issuance on 

the NYSE brought in $576 million in new 

equity for the commercial property manager. 

Latham balances its issuer representations 

with a strong track record as underwriters’ 

counsel. In May 2008, the firm advised an 

underwriting syndicate led by Banc of 

America Securities for the issuance of five and 

ten-year notes for Starwood Hotels & Resorts. 

With underwriters including JPMorgan 

Chase, Merrill Lynch, Morgan Stanley, and 

Deutsche Bank Securities, the offering raised 

$600 million through tranches of 6.25% and 

6.75% notes for the hospitality conglomerate. 

High-yield work has always been a specialty 

for Latham. Despite a largely vacant deal 

landscape throughout the year, high-yield 

windows appeared sporadically in early 2009. 

January in particular was a busy month for 

Latham’s high-yield lawyers. Within two 

weeks, the firm delivered three offerings into 

what had been a bleak market. The firm 

advised JPMorgan Chase, Banc of America 

Securities, and HSBC as the initial purchasers 

for a $550 million issuance of 9.25% notes by 

2010 EDITION

Capital markets | United States 

963 

Metro PCS. The firm then engineered a debt 

exchange for Tenet Healthcare, swapping 

maturing notes of 6.37% and 6.5% for highyield 

notes of 9% and 10%, respectively. 

Finally, Latham lawyers advised the issuer 

again for BC Partners’ issuance of 8.87% 

notes that reaped $400 million in new equity 

for BC and its newly-acquired subsidiary, 

Intelsat. 


Alexander Cohen 

Kirk Davenport 

Marc Jaffe 

Pamela Kelly 

Raymond Lin 

Charles Ruck 


The capital markets group at Shearman & 

Sterling has adopted an international focus to 

its representations, often as issuers’ counsel. 

This strategy has benefitted the firm in crossborder 

work, exemplified by its recent representation 

of the state-owned oil producer of 

Columbia, Ecopetrol. Following its $2.8 billion 

IPO in 2007, Ecopetrol retained 

Shearman & Sterling’s Antonia Stolper to 

enable the company’s common stock to be 

traded on the New York Stock Exchange 

(NYSE). Through the origination of 

American depository shares (ADS), Stolper 

brought Ecopetrol’s stock into the US market 

at a ration of 20 shares of common stock to 

each SEC-registered ADS share. 

But all this isn’t to say that Shearman & 

Sterling isn’t focused on the domestic market 

as well. The firm was hired by Cadbury in 

May 2008 to consult on the spinoff of the 

beverage operations that now make up the Dr 

Pepper Snapple Group. In addition to the 

firm’s creation of a $2.2 billion lending facility 

for the transaction, Shearman partners 

Stephen Giove and Lona Nallengara executed 

a $1.7 billion debt offering for the new entity. 

Another prominent issuer representation 

came in the firm’s advising of Dow Chemical 

in April 2009. As the chemical producer was 

set to acquire rival Rohm & Haas, Shearman 

& Sterling designed a series of private placements 

of preferred stock with beneficiaries of 

the Rohm & Haas Corporation, a transaction 

ultimately worth $7 billion. 

“Basically, the things I use them for are 

extensive. We hire them for all syndicated 

lending financing, and also public offerings 

and general securities law advice,” says one 

Shearman client. “They are extremely responsive 

from a client service perspective. They 

have the depth of expertise so there always is 

an attorney there that is available to get 

involved in technical areas. I’ve been doing 

this for 20-plus years and they’ve basically set 

the bar for client responsiveness.” 

In connection with the Ford Motor 

Company’s recent Equity Distribution 

Agreement, Shearman & Sterling was hired 

by Goldman Sachs for its part of the agreement. 

Acting out of the firm’s New York 

office, Lisa Jacobs represented Goldman in its 

new role as the long-term seller of Ford common 

stock, with the proceeds going toward 

the gradual repurchasing of the automaker’s 

debt obligations. Ford has agreed to sell up to 

$1 billion in common stock as part of the 

agreement. 


David Beveridge 

Stephen Giove 

Lisa Jacobs 

Joel Klaperman 

Lona Nallengara 

Andrew Schleider 


The dominance Sullivan & Cromwell enjoys 

in the regulatory market offers the firm a similarly 

prestigious position in capital markets 

work, thanks to the underlying base of financial 

institutions shared between the practices. 

These relationships often afford the firm representations 

on complex cross-border 

issuances, like the firm’s recent service to the 

Goldman Sachs Group. Advising the issuer, 

Sullivan & Cromwell engineered the offering 

of 41,000 shares of common stock to the lone 

underwriter of the transaction, Goldman 

Sachs. The offering raised $5 billion in new 

capital for the investment bank. 

In April 2009, Sullivan & Cromwell 

served as issuer’s counsel to the global mining 

group Anglo American. Led by New York 

partner Christopher Mann, the debt issuance 

consisted of two tranches of five and 10-year 

high-yield notes that netted Anglo American 

$2 billion. Looking to execute a short-term 

debt offering, the Bank of New York Mellon 

hired the firm recently as well. An issuance of 

three-year notes was established with an 

underwriting syndicate whose bookrunners 

included Barclays Capital, Citigroup Global 

Markets, Deutsche Bank Securities, ultimately 

earning Mellon $600 million upon close of 

the transaction. 

Sullivan & Cromwell’s underwriting work 

saw the firm acting on the January 2009 dual 

equity and debt issuance of Newmont 

Mining. Working with long-time clients 

Citigroup and JPMorgan, the firm negotiated 

the 30 million common stock issuance worth 

$1.5 billion in tandem with a $450 million 

offering of convertible senior notes. The firm 

also represented the underwriters for the most 

recent debt offering by telecom AT&T. 

Sullivan & Cromwell negotiated the threetranche, 

$5.5 billion note issuance for clients 

Banc of America Securities, Citigroup Capital 

Markets, Goldman Sachs, and JPMorgan 

Securities. 

Structured finance has long been a 

strength for the capital markets group at 

Sullivan & Cromwell, mainly in representations 

for the underwriters of structured product 

offerings. The firm represented Goldman 

Sachs as the bookrunner and structuring coordinator 

for an offering by PNC Preferred 

Funding Trust II. The $500 million note 

offering was made through a PNC subsidiary 

based on mortgage assets, with an option to 

convert into fixed-to-floating-rate preferred 

stock in PNC. 


Robert Buckholz 

Jay Clayton 

Robert Downes 

David Harms 

Mark Welshimer 

Other ranked firms 

Cadwalader Wickersham & Taft has reshaped 

its structured finance department in the past 

year, following the headline-grabbing layoffs 

suffered by the group upon the initial collapse 

of the market. Previous to Lehman Brothers’ 

demise, the firm advised the financial-servies 

firm in the repackaging of $750 million in syndicated 

bank loans and the sale of related assets 

held by the Canadian public pension manager 

Caisse de dépôt et placement du Québec. 

Cadwalader also advised Lehman’s RRR 

Loan Funding Trust, which asked the firm to 

again repackage $1 billion in syndicated bank 

loans. Subsequent to the repackaging, Lehman 

subsidiary R3 Capital Partners bought, repackaged, 

and then sold the notes again to subsidiaries 

Lehman Commercial Paper and 

Lehman Brothers Bankhaus. 

Leading lawyers: Michael Gambro and Patrick 

Quinn 

Gibson Dunn & Crutcher has used the 

financial downturn to expand its geographic 

breadth, most notably with the recent opening 

of a new office in São Paulo, Brazil. This Latin- 

American addition gives the firm a total 16 

offices worldwide, further enhancing its ability 

to act in cross-border capital markets representations. 

A balance of underwriting and issuer clients 

allowed the firm a more stable year than was 

afforded some of its competitors who traditionally 

favour one side of the transaction over the 

other. Gibson Dunn’s Stewart McDowell and 

Douglas Smith advised Banc of America 

Securities in December 2008, counselling the 


964 


underwriter on the frameworks for the $6 billion 

debt offering by Wells Fargo. Backed by the 

Federal Deposit Insurance Corporation 

(FDIC), the offering consisted of two tranches 

of 3% and floating-rate notes worth $3 billion 

each. 

Gibson Dunn also represented JPMorgan 

Securities and Citigroup as the underwriters for 

the two-tranche debt offering by United Parcel 

Service (UPS) in April 2009. Divided into five 

and 10-year notes, the offering earned $2 billion 

for the international shipping company. 

In issuer work, Steven Finely advised Tyco 

for the manufacturer’s debt offering and 

exchange offer. A series of 8.5% notes was 

issued in June 2008, followed months later with 

a successful exchange offer for seven lines of 

maturing debt, netting Tyco $4.3 billion overall. 

Leading lawyers: Steven Finley, Kevin Kelley, 

Stewart McDowell and Douglas Smith 

The capital markets team at Kirkland & 

Ellis has built a strong issuer’s practice through 

the firm’s Chicago and New York offices. 

Recently, the firm was retained by airplane 

manufacturer Boeing for a three-tranche debt 

offering. From New York, Kirkland’s Christian 

Nagler arranged for five, ten, and 30-year notes 

to be sold into the market, netting the client 

$1.85 billion. Nagler also handled the $290 

million equity offering by chemical manufacturer 

Solutia in August 2008. In April 2009, 

Whirlpool hired Robert Hayward, of Kirkland’s 

Chicago office, for its own $850 million debt 

offering. 

Mayer Brown has a broad focus in the capital 

markets, engaging in transactions through 

the firm’s global network of offices. This has 

resulted in a growing presence for the firm in 

Latin America as a complement to its US practice. 

As co-chair of Mayer Brown’s capital markets 

group, Edward Best represented JPMorgan 

Securities in two separate debt and equity offerings 

for Johnson Controls in March 2009. A 

series of three-year, 6.5% notes, worth $402 

million, were first issued for Johnson, followed 

by the issue of nine million equity shares that 

equalled $50 million upon entering the public 

market. Both transactions were led out of the 

firm’s Chicago office. 

Mayer Brown’s Warren Loui and Stuart 

Litwin were hired by the Nissan Motor 

Acceptance Corporation in one of the few 

structured finance issuances to take place this 

year. Underwritten by JPMorgan Chase and 

Bank of America, the $1.3 billion package of 

asset-backed securities was the first to be issued 

under the government’s Term Asset-Backed 

Securities Loan Facility (Talf). 

Leading lawyers: Edward Best, Jason Kravitt and 

Stuart Litwin 

The Latin-American presence built up by 

Milbank Tweed Hadley & McCloy through 


the firm’s extensive project finance group has 

also delivered considerable capital markets work 

in the last year. The firm was selected to serve as 

underwriters’ counsel in the IPO of the 

Mexican stock exchange, Bolsa Mexicana de 

Valores, in June 2008. Milbank advised BBVA 

Securities and UBS Securities in the $443 million 

offering. Acting again for the underwriters, 

Milbank advised Citigroup, Banco Itaú, Banco 

Santander, BB Securities, and Banco Bradesco 

for Brazilian telecom Telemar’s $750 million 

senior unsecured debt offering. 

Domestically, Milbank was retained by the 

underwriters on 11 separate debt offerings held 

for Verizon Communications in the last year. 

Underwriting clients from these transactions 

included Banc of America Securities, Barclays 

Capital, Credit Suisse, Goldman Sachs, and 

Citigroup. 

Morrison & Foerster’s historic relationship 

with Bank of America has supplied the firm 

with a constant pipeline of capital markets 

work. As the bank looked to restore its balance 

sheet and recapitalise throughout the economic 

downturn, Morrison & Foerster was chosen as 

underwriters’ counsel for the bank’s own debt 

and equity offerings. Most notable of these was 

a $15.6 billion debt offering made by Banc of 

America to subsidiary underwriter Banc of 

America Securities. 

Advising the underwriter, Morrison & 

Foerster helped construct what would be a fourtranche 

issuance of medium-term notes enacted 

under the FDIC’s Temporary Liquidity 

Guarantee Program. The programme guarantees 

recently issued bank debt in order to help 

foster greater liquidity and confidence in US 

financial institutions. Out of the firm’s New 

York office, peers recognise Anna Pinedo and 

James Tanenbaum for their leadership of the 

Morrison & Foerster capital markets group. 

Leading lawyers: Anna Pinedo and James 

Tanenbaum 

Thanks in part to its presence in the private 

equity market, O’Melveny & Myers was 

awarded representation in the recent debt 

exchange between the Six Flags amusement 

parks and Avenue Capital Group. Advising 

Avenue Capital, O’Melveny negotiated the subsequent 

tender offer of $400 million senior 

notes for the indebted amusement park operator. 

O’Melveny also represented Wachovia as the 

underwriter in an $80 million private placement 

for NorthStar Realty Finance. The highyield 

offering of exchangeable senior notes was 

conducted through the firm’s San Francisco 

office by Peter Healy and Justin Laubach. 

Sidley Austin has the luxury of a diverse 

client base of issuers and underwriters who 

returned throughout the year to keep the firm’s 

capital markets group more active than most. 

Despite this activity however, the firm was 

forced to lay off 89 associates throughout its US 

offices as a result of the economic downturn. 

Representing an underwriting syndicate of 

Banc of America Securities, Citigroup, 

Deutsche Bank Securities, and Goldman Sachs, 

Sidley advised on a series of debt and equity 

offerings by the Simon Property Group. A mix 

of five and ten-year notes were arranged for 

Simon, the largest real-estate investment trusts 

(Reit) in the US, as well as a $472 million equity 

offering. In all, the transactions equalled $2.6 

billion. Elsewhere in the real-estate sector, 

Sidley also represented the underwriters for two 

separate equity offerings by Kimco Realty. 

Advising Citigroup, Deutsche Bank, Merrill 

Lynch, UBS, and Wachovia in the transaction, 

the offerings totalled $1.17 billion for Kimco. 

Working for the issuer, Sidley advised industrial 

machine manufacturer Caterpillar through 

a series of debt offerings worth $5.9 billion. The 

transactions were led by Jonathan Miller and 

James O’Connor out of the firm’s New York 

office. 

“I’ve been using the firm for 20 years. They 

have quality of service, of course. They have 

global reach, and good technical expertise,” says 

one client. “I think they are very thorough in 

understanding every aspect of a transaction and 

any SEC implications.” 

Leading lawyers: Thomas Albrecht, Larry 

Barden, Eric Haueter, Renwick Martin, Edward 

Petrosky and Norman Slonaker 

Simpson Thacher & Bartlett has incorporated 

its renowned expertise with financial institutions 

in regulatory and M&A work into a 

successful capital markets practice. One competitor 

recommends the work of corporate partner 

Glenn Reiter. “Glenn is always a pleasure to 

work with. He’s an excellent lawyer. He doesn’t 

play games and cares deeply about getting it 

right.” 

This type of reputation affords Reiter representations 

like his recent advising of the underwriters 

of Roche’s $16.5 billion debt offering. 

Engineered to provide part of the financing for 

Roche’s minority-stake acquisition of rival 

Genentech, the offering consisted of six tranches 

of debt, ranging from one-year floating-rate 

notes to 30-year fixed securities. Reiter represented 

Banc of America Securities, Citigroup, 

and JPMorgan in the transaction, the largest 

corporate debt offering in history. 

“What makes them so good is so many people 

in so many skill sets,” says a client. “The fact 

that they have a broad expertise in a lot of areas 

and they work so seamlessly together has made 

them invaluable partners to us.” 

Corporate partner John Tehan has also had a 

busy year for the firm. With Michael Nathan 

and Joshua Bonnie, Tehan advised issuers 

Ingersoll-Rand Global Holding Company and 

subsidiary Ingersoll-Rand for their respective 

$655 million and $345 million debt offerings. 

2010 EDITION

Banking| United States 

965 

Tehan was also retained by the underwriting 

syndicate for Halliburton’s $2 billion debt offering 

in March 2009. The three-tranche offering 

of ten and 30-year notes was sold to a syndicate 

that included Citigroup, Deutsche Bank 

Securities, HSBC, and RBS Greenwich Capital 

Markets. 

Leading lawyers: Glenn Reiter and John Tehan 

The breadth of corporate expertise offered by 

Skadden Arps Slate Meagher & Flom puts the 

firm on the shortlist for many financial institutions, 

subsequently offering the firm crossover 

work from its returning clients. Peers recommend 

the head of Skadden’s corporate finance 

group, Stacy Kanter, for her deal-making abilities. 

Throughout the past year, Skadden served 

as counsel to several lenders in connection 

with federal liquidity programs. The firm’s 

work with the Tarp program included representing 

Citigroup, Fifth Third Bancorp, and 

Northern Trust in their respective sales of $25 

billion, $3.4 billion, and $1.5 billion in stocks 

and warrants to the US Treasury. The firm was 

also hired by Citibank for two issuances 

through the Temporary Liquidity Guarantee 

Program. Equalling $3.5 billion and $8.1 billion 

in separate offerings, Skadden negotiated 

the transactions that included short-term 

floating rate notes, all guaranteed by the 

FDIC. 

Using two of its true corporate strengths, 

Skadden combined the expertise of its structured 

finance and M&A platforms to execute a deal 

for BlackRock Financial Management in May 

2008. The firm helped form the RMBS 

Opportunities Master Fund, an investment 

vehicle that subsequently acquired a portfolio of 

distressed residential mortgage-backed securities 

worth an estimated $22 billion at the time of the 

transaction. 

Leading lawyers: Susan Curtis, Gregory 

Fernicola, Stacy Kanter, Richard Kadlick, Phyllis 

Korff and Matthew Mallow 

Under the leadership of David Lefkowitz, 

Weil Gotshal & Manges’ capital markets group 

served as issuer’s counsel in two of this year’s 

more prominent recapitalisations outside of 

financial institutions. The firm advised General 

Electric (GE) in connection with the company’s 

$12.2 billion offering of common stock, and in 

the private placement of $3 billion of preferred 

shares with Warren Buffett’s investment management 

company, Berkshire Hathaway. The 

offering was arranged by GE following concerns 

from its investors of a lack of working capital 

during the beginning of the credit crisis. 

Weil also represented DirecTV in the 

$1.35 billion high-yield offering the satellitetelevision 

operator used as part of its stock 

repurchasing programme. 

Leading lawyers: David Lefkowitz 

In order to offset some of the damage 

caused by massive layoffs within its US associate 

ranks and the lateral departure of Howard 

Kleinman, White & Case brought in partners 

Ian Cuillerier and Monica Arora from rivals 

Hunton & Williams and Debevoise & 

Plimpton, respectively. 

The moves look to bolster an issuer practice 

that has received industry-wide recognition 

since its representation of Visa in the 

credit-card company’s record-breaking IPO 

last year. Representing Newmont Mining, 

White & Case’s Kevin Keogh arranged for the 

public issuance of 34.5 million shares of common 

stock in the company. Sold to a syndicate 

led by Citigroup and JPMorgan, the 

offering raised $1.3 billion in February 2009. 

Keogh again advised the issuer in his representation 

of health benefits provider 

WellPoint. Segmented into two tranches of 

6% five-year notes and 7% ten-year notes, 

WellPoint received $1 billion in fresh capital 

through the offering. 

Leading lawyers: Colin Diamond, John 

Donovan and Kevin Keogh 

Bank lending 


Tier 1 




Tier 2 





Tier 3 


Sidley Austin 



White & Case 

Tier 4 

Bingham McCutchen 

Jones Day 


Tier 5 



Mayer Brown 

Ropes & Gray 

Tier 6 

Baker Botts 



Financial services regulatory 


Tier 1 


Tier 2 




Tier 3 



White & Case 

Tier 4 





Mayer Brown 



Sidley Austin 

WilmerHale 

Tier 5 

Alston & Bird 

Arnold & Porter 

Covington & Burling 

September 15 2008: D-day. The sudden and 

dramatic collapse of Lehman Brothers proved 

to be the defining moment of the pandemic 

recession of the past year. US lawyers speak of 

the date as a pivotal point to measure all gain 

and loss since. The term “post-Lehman” 

became synonymous with the panic and 

uncertainty flooding the market. Suddenly 

everyone was vulnerable; everyone needed 

advice. Aside from restructuring work, regulatory 

practices were in demand to help control 

the bleeding and answer a seemingly simple 

question, what next? “This environment 

places a premium on experience,” says one 

partner. “You clearly need to be more than a 

one-trick pony to survive and do well by your 

clients in an atmosphere where you’re seeing 

new twists every day and problems that can’t 

simply be solved by refinancing the whole 

deal,” notes another. 

After months of speculation, forecasts 

thought unthinkable only months before were 

suddenly feasible. Investment banks in particular 

faced serious questions about their subprime 

exposures, securities whose depreciating 

values turned once sound balance sheets 

into question. This scenario caused what some 

have referred to as the end of an era that saw 

market dominance by the Wall Street investment 

banks of New York. Bear Stearns collapsed 

and was acquired by JPMorgan Chase 


966 

United States | Banking 

in March 2008; Lehman Brothers filed for 

Chapter 11 protections in September; Merrill 

Lynch was acquired by Bank of America a 

week later; Goldman Sachs and Morgan 

Stanley converted to bank holding companies. 

With the banking landscape so wholly 

altered by the disappearing investment banks, 

as well as by the acquisition of Wachovia by 

Wells Fargo and Washington Mutual by 

JPMorgan Chase, the US government 

attempted to control the deluge in the financial 

sector. New lending was significantly 

reduced under the new directive of risk aversion. 

The Troubled Asset Relief Program 

(Tarp) and Term Asset-Backed Securities Loan 

Facility (Talf) programs were created under 

the advice of the US Department of the 

Treasury and the Federal Reserve with the 

intent of restoring the lending capabilities of 

American financial institutions. Both Tarp 

and Talf look to relieve banks of depreciating 

assets and equity, with mixed results. “The 

Fed hasn’t changed its colours; The Fed is still 

the Fed,” says one partner. “On the margins 

there’s a little bit of liberalisation to permit ... 

but it hasn’t revolutionised the landscape yet.” 

Broad programs like Tarp and Talf have led 

to scrutiny over any proposals of permanent 

changes to the regulatory framework. “When 

Congress responds to a crisis it’s hard to know 

how things will shake out,” says one partner. 

“It’s much easier to create agencies in response 

to a crisis than it is to eliminate them.” 


Hamilton 

Cleary Gottlieb Steen & Hamilton has cultivated 

a mature, even practice throughout the 

corporate disciplines. The lending and regulatory 

groups consistently deliver complex solutions 

for financial institutions in what has 

increasingly become an overall international 

focus for the firm. “I have the highest opinion 

of them,” says one regulatory client of the 

firm. 

From its sprawling worldwide network of 

12 offices, Cleary divides its US regulatory 

expertise between New York and Washington 

DC. Senior talent like Paul Glotzer, John 

Murphy, and Robert Tortoriello are highlighted 

by peers for their oversight and compliance 

expertise. “Cleary, I think, is strong across the 

board,” says one competitor. 

February 2009 brought the return of 

Edward Greene to the New York office after 

five years of serving as general counsel to 

Citigroup’s Institutional Clients Group. In 

the same month, David Becker left Cleary to 

accept the post of general counsel and senior 

policy director of the Securities and Exchange 

Commission (SEC). This swapping of personnel 

leaves the firm with three former senior 


staff from the SEC: Alan Beller, Edward 

Greene, and Giovanni Prezioso. 

“They are our primary outside law firm. 

They do a ton of work for us depending on 

needs. We have used them a lot in the regulatory 

space particularly, and they’ve done an 

excellent job for us out of New York and DC,” 

says one client. “Regulatory work doesn’t 

come up in a vacuum, it comes up in the context 

of a deal. And they’re wonderful deal 

lawyers.” 

Acquisition finance has become a specialty 

for the firm as a result of its leading M&A 

practice. This crossover ability provided the 

firm with a highlight in its representation of a 

consortium of private-equity purchasers 

under the mantel of IMB Management 

Holdings. The consortium acquired distressed 

home-lender IndyMac Federal Bank for $13.9 

billion following its failure and transference to 

the Federal Deposit Insurance Corporation 

(FDIC). Led by Dune Capital, the consortium 

also included Paulson & Co, JC Flowers, 

MSD Capital, Stone Point Capital, Soros 

Fund Management, American Capital 

Partners, and Silar Advisors. Cleary’s William 

Groll and Paul Glotzer advised the consortium 

on regulatory matters in what was the 

first name-brand bank to be absorbed by private 

equity investors. 

Another highlight in the financial sector is 

Paul Glotzer and Neil Whoriskey’s representation 

of the sovereign wealth fund of 

Singapore, Temasek, in September 2008. 

Temasek’s timely investment of $3.4 billion 

helped buoy the Bank of America through the 

worst of the credit crisis. The firm was also 

concurrently assisting the financial advisor to 

the Treasury Department during conservatorship 

processes for government-supported 

mortgage lenders Fannie Mae and Freddie 

Mac. 


Ken Bachman 

Derek Bush 

Paul Glotzer 

John Murphy 

Robert Tortoriello 


Cravath Swaine & Moore has cultivated one 

of the pre-eminent lender practices in New 

York. Despite the consolidation of investment 

banks in the past year, close relationships with 

lenders like Credit Suisse, Citigroup, and particularly 

JPMorgan Chase have provided the 

firm with a steady deal flow through the worst 

of the financial crisis. The preference of these 

financial institutions to hire Cravath to negotiate 

lending terms also speaks volumes about 

the quality of partners at the firm. 

As chair of Cravath’s financial institutions 

practice, B Robbins Kiessling comes recommended 

by peers for his transactional knowledge 

and for maintaining some of the firm’s 

most important client relationships like 

JPMorgan Chase. Kiessling recently advised 

the securities arm of Citigroup, Citigroup 

Global Markets, in their negotiations with 

Hewlett-Packard (HP). The Cravath team 

helped secure a $3 billion revolving credit 

facility for HP, with Citigroup serving as 

agent and arranger on the transaction, which 

closed in February 2009. 

Additional work for Citigroup included 

Cravath’s dual representation of the investment 

bank with rival Credit Suisse as the 

arrangers for $1 billion in term loans issued 

for Freescale Semiconductor. Andrew Pitts 

and Paul Zumbro negotiated the senior 

secured term loans, replacing several existing 

note facilities at Freescale that faced maturity. 

A consolidated market position through 

the financial crisis made JPMorgan Chase a 

valuable client in the last year. Not only have 

they acquired competitors like Bear Stearns 

and Washington Mutual, the bank has maintained 

much of its lending profile through the 

bear market. Cravath first negotiated a $5 billion 

credit facility that funded the acquisition 

of tobacco producer UST by Altria in 

December 2008, and in the following month 

advised the investment bank as the agent and 

arranger of a $2 billion credit facility for commercial 

retailer Macy’s. 

Finally, in May 2009, a Cravath team 

structured the loan agreement for JPMorgan 

Chase’s $1 billion revolving credit facility for 

the National Basketball Association (NBA). 

The facility was established in order to supply 

NBA teams throughout the US with lowinterest 

financing throughout the economic 

downturn. 


James Cooper 

Michael Goldman 

B Robbins Kiessling 

Andrew Pitts 

James Vardell 


It’s hard to find a corporate firm that has 

developed more combined reverence with 

competitors in both banking and regulatory 

work than Davis Polk & Wardwell. The firm’s 

collective Financial Institutions Group (FIG) 

has proved an effective model throughout the 

financial crisis, bringing together banking, 

capital markets, M&A, and regulatory counsel 

with the intent of offering a cross-platform 

approach for its institutional clients. 

2010 EDITION

Banking | United States 

967 

While the broad nature of the expertise at 

Davis Polk has benefited the firm recently, 

peers see the practice as needing to expand 

through the addition of more high-profile regulatory 

personnel. Davis Polk has responded 

by rehiring Annette Nazareth in 2008, following 

ten years of service at the Securities and 

Exchange Commission (SEC). Serving as 

commissioner of the SEC from 2005 through 

2008, Nazareth’s addition to the firm’s 

Washington DC office brings firsthand experience 

in broker-dealer oversight and issues of 

disclosure. 

Davis Polk has been a stand-by option for 

some of those companies famously deemed 

too big to fail by the US government, thrusting 

the firm into consultations for rescue 

financings and recapitalisation programmes 

from the very beginning of the crisis. And 

while many of the actions for clients like 

Citigroup became headline news, the contingency 

planning behind the scenes was just as 

important. 

As head of the FIG group, Randall Guynn 

was retained on the regulatory side of many of 

these efforts. Guynn handled the proposed 

conversion of $52 billion in preferred stock 

into common stock for the banking conglomerate, 

and was tasked with re-establishing the 

corporate division between Citicorp and Citi 

Holdings. Other efforts for Citi included 

Davis Polk’s engineering of a joint venture 

between Citi and Morgan Stanley that gives 

the investment bank control over Citi’s Smith 

Barney brokerage, as well as Citi’s acceptance 

of nearly $45 billion in government financing 

packages since mid-2008. 

Davis Polk was also retained in connection 

with the rescue financing for another struggling 

US financial institution – American 

International Group (AIG). Advising the 

Federal Reserve Bank of New York and the US 

Treasury, Randall Guynn, Ethan James, and 

Arthur Long helped create financing and 

investment facilities aimed at buoying the 

insurance company. The Davis Polk team 

helped create the original $85 billion facility 

offering to AIG through the New York Fed, as 

well as the establishment of a trust for the 

Treasury that would hold its 79.9% preferredshare 

stake in the insurance provider. 

The firm also handled the Treasury’s distribution 

of $70 billion in Tarp funds in AIG 

through several exchanges for preferred shares 

in the company that were later converted to 

initiate recapitalisation programmes in April 

2009. “Arthur Long is also [a] first-rate regulatory 

lawyer there,” remarks one client. 

“They’re extremely responsive,” says 

another client. “The most fundamental thing 

is the combination of first-rate deal execution 

capacity with high level regulatory knowledge. 

There are only a few places you can get that, 

and Davis Polk is one of them.” 


Randall Guynn 

Ethan James 

Arthur Long 

Annette Nazareth 

Brad Smith 


Latham & Watkins again tops the banking 

rankings for its expertise in representations for 

lender and borrower alike. A network of 27 

offices worldwide affords the firm its reputation 

as true cross-border counsel, though it’s 

the firm’s shared leadership across US offices 

in the banking practice specifically that earns 

Latham praise from competitors. David 

Crumbaugh in Chicago, Marc Hanrahan in 

New York, and John Mendez in the firm’s 

founding office in Los Angeles have crafted an 

operating model that complements firm 

strengths in private equity and capital markets 

work. One peer singles out Nancy Schimmel, 

from the firm’s Chicago office, for her established 

reputation with clients. “Nancy 

Schimmel is actually quite remarkable. She’s 

well liked by the banks and has a great practice,” 

says one competitor. 

Acquisition finance has become a staple of 

Latham’s banking group, benefitting from 

carry-over work generated by clients in the 

firm’s M&A/private-equity platform. 

Working across offices with Marc Hanrahan 

in New York and Brad Kotler in Chicago, 

Latham designed the financing provided by 

Goldman Sachs Credit Partners in connection 

with the acquisition of candy maker Wrigley 

by rival Mars in 2008. The $4.85 billion in 

senior debt provided by Goldman was part of 

an overall $23 billion financing package in 

conjunction with Berkshire Hathaway and 

JPMorgan Chase. Latham also advised 

Morgan Stanley as the arranger to $1.25 billion 

in financing for First Reserve’s acquisition 

of CHC Helicopter. Feeding into the crossborder 

nature of Latham’s own structure, the 

deal utilised the firm’s New York and London 

offices as it was executed simultaneously in 

the US, Canada, and Europe. 

Latham is also the most recent addition to 

the IFLR1000 regulatory rankings. Through 

its Washington DC office, Brian Smith has 

served as counsel on a number of sovereign 

wealth funds’ investments into international 

financial institutions throughout the financial 

downturn. 

Most recently, Smith advised the Qatar 

Investment Fund in the second of its recapitalisation 

transactions with Barclays, worth an 

estimated £4.5 billion ($9 billion). Similar to 

international work executed in the firm’s lending 

practice, the transaction was handled 

through Latham’s New York and London 

offices. 


David Crumbaugh 

Marc Hanrahan 

John Mendez 

Brian Smith 


Simpson Thacher is the dark horse of the 

banking sector. Traditionally renowned for its 

securities and private equity work, the firm 

has gained a quiet but broad reputation with 

regulators and lenders. The financial crisis has 

played its part in raising the firm’s profile 

through the consultations of the Treasury 

Department and other federal entities. 

Simpson has accomplished all this despite a 

smaller group of practitioners dedicated 

specifically to the market when compared to 

competitors. Competitors highlight Gary 

Rice, of the firm’s New York office, for his 

consistent expertise in the area of bank oversight 

law. 

“They’re extremely knowledgeable in the 

marketplace. They know what’s achievable 

and what’s not. They’re very pragmatic,” says 

one Simpson client. “It’s a high level of service 

that you get out of the firm. And there is a real 

uniformity in terms of the quality, and in my 

mind that is what distinguishes them from the 

competition.” 

Following the passage of the Emergency 

Economic Stabilization Act of 2008, Simpson 

Thacher began performing in its advisory 

capacity to the US Treasury. In accompaniment 

to other leading regulatory firms, 

Simpson Thacher helped design and ultimately 

implement relief funding for the financial 

sector through Tarp and the Public-Private 

Investment Program (PPIP). Capital infusions 

to US banks through the Tarp program are 

estimated at $250 billion, with the list of 

banks accepting funds including Bank of 

America, Citigroup, Goldman Sachs, and 

JPMorgan Chase. 

The PPIP was similarly allocated $500 billion 

to purchase toxic mortgage assets, in partnership 

with private investors, from struggling 

financial institutions. Simpson Thacher’s Lee 

Meyerson, head of the firm’s financial institutions 

practice, advised the Treasury throughout 

the drafting and implementation of the 

programmes. This representation also included 

supervising separate $20 billion Tarp loans 

to Citigroup and Bank of America in 

exchange for preferred stock in the banks. 

One client of the firm says, “I would recommend 

Lee Meyerson at Simpson for that com- 


968 

United States | Banking 

bination of bank regulatory and lending 

knowledge.” 

Another prominent representation for the 

firm came in the early days of the credit crisis. 

The sudden collapse of Bear Stearns caused 

the Federal Reserve Bank of New York to hire 

Simpson Thacher to help construct a financing 

package that could fund the failed investment 

bank’s merger with JPMorgan Chase. 

Richard Beattie, David Eisenberg, Gary Rice, 

and Brian Steinhardt advised the New York 

Fed through the transaction, ultimately 

designing a $28.8 billion loan that, in cooperation 

with loans made by JPMorgan, 

allowed a portfolio of former Bear Stearns 

assets to be purchased. 


Richard Beattie 

James D Cross 

David Eisenberg 

Lee Meyerson 

Gary Rice 

Patrick Ryan 

Brian Steinhardt 


Sullivan & Cromwell defines regulatory 

expertise in the United States. “They are the 

standard by which everyone tends to measure 

this business,” says one competitor. Under the 

leadership of chairman H Rodgin Cohen, 

Sullivan & Cromwell has become synonymous 

with the cutting-edge regulatory work 

being done as a result of the financial crisis. 

AIG, Barclays, Bear Stearns, Fannie Mae, 

Goldman Sachs – the firm’s high-profile client 

list reads like a who’s who of the financial sector. 

In the words of one rival partner, “You can 

stand Sullivan & Cromwell in a corner all by 

themselves.” It’s because of such strong peer 

and client feedback that Sullivan & Cromwell 

has appeared in the top tier for regulatory 

work for the past five years. 

Speculation was rampant in early 2009 

that Cohen would be nominated for the post 

of deputy secretary for the Treasury under 

Timothy Geithner. Although Cohen later 

withdrew his name from the list of potential 

candidates, the gesture does not overstate the 

confidence financial institutions recognise in 

his advice and his established presence in dealing 

with the government. “There’s probably 

been an exceptional story that Sullivan & 

Cromwell has to tell because of Rodgin 

Cohen,” says a competitor. Further bolstering 

its bench strength, Sullivan & Cromwell has 

added J Virgil Mattingly Jr as senior counsel 

in its Washington DC office. Before his arrival 

at the firm, Mattingly served as general counsel 

to the board of the US Federal Reserve. 


Reeling from losses that threatened to collapse 

the entirety of American International 

Group (AIG), the insurer retained Sullivan & 

Cromwell in connection with its recapitalisation 

talks with the US government. Cohen, 

Robert DeLaMater, and Michael Wiseman 

negotiated for AIG, resulting in a pair of rescue 

financing packages worth over $100 billion. 

The transaction left the US government 

with an 80% stake in the insurance company 

through holdings of Series D preferred stock. 

Another highlight for the firm’s regulatory 

department was its counselling of the Federal 

National Mortgage Association (Fannie Mae). 

In September 2008, the government-sponsored 

Fannie Mae and its sibling, Federal 

Home Loan Mortgage Corporation (Freddie 

Mac), were placed under the conservatorship 

of the Federal Housing Financing Agency 

(FHFA). The move gives the US government 

control over the institutions and their estimated 

$5 trillion in US home loan guarantees. 

Sullivan & Cromwell also advised 

Goldman Sachs and American Express in 

their conversions to bank holding companies, 

as well as Barclays in its acquisition of the 

investment banking and capital markets operations 

of the Lehman Brothers. 

“We’ve used them off and on for many, 

many years. But our most frequent and 

intense use of the firm has been in the last 12 

months,” says a client. “As the exterior environment 

was changing so rapidly, I can think 

of no better firm to understand what was 

going to happen and not only give accurate 

technical advice but, even more importantly, 

exercise informed, sophisticated judgement 

given the environment and decide what was 

going to be the best way forward. They really 

have their finger on the pulse of regulatory 

work.” 


Robert Buckholz 

H Rodgin Cohen 

Mitchell Eitel 

Mark Welshimer 

Michael Wiseman 


Alston & Bird has had a busy year building 

up its lending and regulatory department, 

adding Brian Betancourt from Dewey & 

LeBoeuf, Evan Drutman from Greenberg 

Traurig, and Carol McGee from the SEC. The 

firm advised IndyMac on recapitalisation programmes 

prior to the lender’s seizure by the 

FDIC and now represents IndyMac in its 

Chapter 7 proceedings. Other regulatory 

work includes the firm’s representation of 

E*Trade Financial, EverBank Financial, and 

Security Bancorp in their negotiations with 

the Treasury regarding the Capital Purchase 

Program. 

The recent departure of five partners from 

its banking practice is a significant loss for 

Bingham McCutchen. Leaving in June 2009 

for rival Morgan Lewis & Bockius, the group 

included Jonathan Bernstein, a former cohead 

of Bingham’s lending practice. Despite 

its losses, peers still view the firm as having a 

solid bench of banking talent and an increasing 

quality in lender representations. 

“Bingham is a great firm,” remarks one competitor. 

Bingham maintained its position in the 

middle market through several lender representations 

for Bank of America in the past 

year. The firm first advised the bank on the 

creation of a $150 million secured revolving 

credit facility for Concord Music Group in 

May 2008, then negotiated the $600 million 

syndicated cross-border credit facilities for 

food manufacturer OSI Group. Bingham subsequently 

represented Bank of America as the 

administrative agent and lead arranger on an 

unsecured $70 million credit facility for the 

IT-focused Harris Stratex Networks. 

Leading lawyers: Anthony Callobre, Neal 

Curtin, Frederick Eisenbiegler and James 

Rockett 

Cadwalader Wickersham & Taft is raising 

its regulatory profile as a consequence of the 

high-profile restructuring work conducted by 

the firm. In representing petrochemical producer 

Lyondell in its Chapter 11 proceedings, 

Cadwalader was able to structure $8 billion in 

debtor-in-possession (DIP) financing from a 

consortium of 14 banks. To date, this is the 

largest DIP financing obtained in the US. The 

firm is also advising Citibank and Morgan 

Stanley as the investment banks unwind 

investment operations related to the bankrupted 

Lehman Brothers. 

Leading lawyers: Steven Cohen, Steven 

Lofchie and W Christopher White 

Cahill Gordon & Reindel’s acquisition 

finance work comes as an offshoot of the 

firm’s specialty in high-yield debt offerings. 

Strong relationships with lenders like Bank of 

America, Deutsche Bank, JPMorgan Chase, 

and Morgan Stanley allow the firm to be competitive 

against larger rivals. Peers note the stable 

bench of senior talent at the firm, with 

rival practitioners highlighting the work of 

James Clark, Jonathan Schaffzin, and Daniel 

Zubkoff as representative of the overall quality 

associated with Cahill. 

While handling a concurrent high-yield 

offering in connection with the acquisition of 

Clear Channel Communications, Cahill also 

negotiated the term loans and credit facilities 

that financed the deal. Representing the 

arrangers and agents in Citibank, Deutsche 

2010 EDITION

Banking | United States 

969 

Bank, Morgan Stanley Senior Funding, Credit 

Suisse, Royal Bank of Scotland, and 

Wachovia, Cahill engineered a three-tranche 

term loan, a separate $1.25 billion delayed 

draw term loan, and a $783 million assetbased 

credit facility. Again acting for the 

arrangers, the firm advised Bank of America, 

Citicorp, Credit Suisse, Deutsche Bank, and 

UBS Investment Bank as the lenders of a $4 

billion facility financing Eli Lilly’s acquisition 

of ImClone. 

Leading lawyers: James Clark, William 

Hartnett, Jonathan Schaffzin, Susanna Suh 

and Daniel Zubkoff 

A strong market sentiment introduces 

Fried Frank Harris Shriver & Jacobson into 

the regulatory rankings this year. Despite a 

lower profile in regulatory matters compared 

to some competitors, Fried Frank made a 

definitive impression with peers for its work 

with IMB Management Holdings this year. 

Thomas Vartanian and David Ansell advised 

Paulson & Co as part of a private-equity consortium 

that acquired California home-lender 

IndyMac from the FDIC. The transaction was 

the first acquisition of a bank by a privateequity 

consortium, which included Dune 

Capital, JC Flowers, MSD Capital, Stone 

Point Capital, Soros Fund Management, 

American Capital Partners, and Silar Advisors. 

In lending work, Fried Frank advised 

JPMorgan for the financing of Merck’s $41 

billion merger with Schering-Plough. The 

investment bank provided $8.5 billion toward 

the transaction, to be combined with a stock 

exchange and the utilisation of $9.8 billion in 

existing cash reserves at Merck. Fried Frank 

also advised a lending group in connection 

with Blackstone Group’s acquisition of Apria 

Healthcare. Representing Bank of America, 

Barclays Capital, and Wachovia, Fried Frank 

designed a $175 million ABL facility to act in 

conjunction with a $1 billion bridge facility. 

Leading lawyers: David Ansell, Arthur 

Kaufman, F William Reindel and Thomas 

Vartanian 

The finance group at Mayer Brown 

received a boost this year through crossover 

work from the firm’s restructuring practice. 

The firm advised Morgan Stanley as the lead 

arranger of what is the largest DIP loan in US 

history, providing a portion of the $8 billion 

financing package that allowed Lyondell 

Chemical to exit bankruptcy. 

Mayer Brown was also involved in the 

cross-border refinancing of GMAC. 

Structures created for the auto lender included 

an $11.4 billion secured revolving credit 

facility, a $2.5 billion syndicated repurchase 

facility, and a senior secured credit facility 

worth $3.5 billion that was backed by notes 

issued from foreign mortgage securitisations. 

Mayer Brown also saw two additions to its 

banking group with the arrival of Timothy 

Ryan and David Wiles from Bank of America. 

Leading lawyers: Thomas Delaney, Mary 

Fontaine, Lawrence Hamilton, Charles Horn 

and Jeffrey Taft 

With its established presence in the project 

financing market, it’s no surprise that 

Milbank Tweed Hadley & McCloy has 

found success elsewhere in the financial sector. 

The firm negotiated 364-day credit agreements 

for American General Finance and 

Verizon Wireless in the past year. Advising 

JPMorgan Chase, Milbank’s Hugh Robertson 

finalised the $5.3 billion facility for Verizon, 

while William Mahoney counselled Citibank 

in the creation of a $2.4 billion facility for 

American General Finance. 

Leading lawyers: Hugh Robertson 

Morrison & Foerster has established a 

strong financing platform to complement its 

success in capital markets work. The firm has 

built a financial services group that includes 

practitioners like Barbara Mendelson and 

William Veatch, who are well reviewed by 

peers for their rounded experience in the market. 

One competitor singles out L Richard 

Fischer, from the firm’s Washington DC 

office, for his regulatory expertise, saying: 

“Everyone thinks highly of him, and rightly 

so.” 

The firm has used its presence in the Asian 

markets to bolster its US practice, advising 

clients like Mitsubishi UFJ Financial Group, 

Mizuho Corporate Bank, and Toshiba in 

crossover work through its West Coast offices. 

The gaining presence of private equity in the 

financial sector has also offered the firm 

increased regulatory exposure following liquidity 

concerns in the US financial sector. 

Leading lawyers: Henry Fields, L Richard 

Fischer, Barbara Mendelson and William 

Veatch 

The lending and regulatory groups at 

Shearman & Sterling have benefitted from 

primary relationships with Bank of America 

and Citigroup through the past year. 

Tumultuous years at both banks have led to a 

host of representations for both sides of the 

practice. Shearman advised Citigroup Global 

Markets in the implementation of a $400 million 

senior secured DIP facility for Chemtura. 

Citigroup served as lead arranger and 

bookrunner on the transaction, using $100 

million in new equity in combination with 

separate debt roll-ups to aid the petrochemical 

company out of Chapter 11. 

Shearman was also retained by the joint 

lead arrangers and bookrunners for a $5 billion 

credit facility to Toyota Motor Credit 

Corporation. Advising Banc of America 

Securities, Citigroup Global Markets, and the 

Bank of Tokyo-Mitsubishi UFJ, the 364-day 

facility exemplifies the cross-border capabilities 

of Shearman & Sterling. 

Peers in the regulatory market recommend 

Brad Sabel as the rising star of the Shearman 

group, particularly for his knowledge of the 

developing government programs aiding the 

financial sector. “They’re very well received by 

our internal clients, and my internal client has 

been equally satisfied,” says one Shearman 

client. “The quality is unsurpassed.” 

Leading lawyers: William Hirschberg, Maura 

O’Sullivan, Bradley Sabel and Paul Schreiber 

Sidley Austin moves up in the rankings 

following an impressive year fuelled by lender 

clients like JPMorgan Chase and Citigroup. 

Strong peer feedback also helps edge the firm 

higher, with one competitor saying: “They 

have some very strong lawyers in Chicago.” 

Several peers also recommend James Clark in 

the firm’s Chicago office. 

In July 2008, Clark advised JPMorgan as 

the administrative agent for the establishment 

of a $1.9 billion revolving credit facility for 

motorcycle manufacturer Harley-Davidson. 

Then, in November 2008, Clark again 

advised the bank during the refinancing negotiations 

with the Actuant Corporation. 

Through a $400 million revolving facility and 

a $115 million term loan, the industrial systems 

engineering company was able to refinance 

existing financing structures during the 

worst of the financial crisis. 

Similar to its work across the table from 

Harley Davidson, Sidley’s James Looman 

negotiated with Caterpillar for Citigroup in 

September 2008. The end result was a $2.2 

billion multi-currency credit facility for the 

industrial equipment manufacturer. 

Leading lawyers: Zulfiqar Bokhari, James 

Clark and William Eckland 

Competitors note the breadth of the banking 

practice at Skadden Arps Slate Meagher 

& Flom, with particular emphasis on William 

Sweet’s expertise in the firm’s Washington DC 

office. Compared to its lending group, 

Skadden’s regulatory expertise maintains a 

lower profile. However, the regulatory group 

has received a boost in recent years through 

the firm’s storied M&A practice. 

Sal Guerrera’s relationship with Credit 

Suisse brought the firm two significant representations 

this year. Guerrera advised the 

investment bank in the Chapter 11 proceedings 

relating to the default of a $440 million 

senior credit facility by Tropicana 

Entertainment. In July 2008, Guerrera also 

represented Credit Suisse in the negotiation of 

a $348 million credit facility for oil services 

provider Express Energy Services Operating. 

In conjunction with a debt offering completed 

by its capital markets team, Skadden 

also helped establish a $1.4 billion senior 

credit facility and one-year $1.3 billion credit 


970 

United States | Mergers and acquisitions 

facility for CME Group in August 2008. The 

new equity was used in part to finance CME’s 

acquisition of the New York Mercantile 

Exchange. 

Leading lawyers: Thomas Gowan and 

William Sweet 

The banking practice at Weil Gotshal & 

Manges is benefited by what may be the leading 

restructuring group in the US right now. 

The crossover has resulted in the generation of 

debtor-in-possession (DIP) financing work 

for the firm, in addition to its already established 

lending practice. Residential and commercial 

real-estate developer LandSource 

Communities Development hired the firm for 

its Chapter 11 proceedings, subsequently 

securing $135 million in initial DIP financing 

and a subsequent $1 billion in the form of a 

roll-up term loan thereafter. Similar DIP work 

was done for General Motors as the automaker 

offered $650 million in DIP financing to 

auto-parts manufacturer Delphi in May 2008. 

Acquisition finance also lends a large 

amount of work to the banking group at Weil 

Gotshal. The firm secured the $1.2 billion 

financing package that allowed NBC 

Universal to complete its acquisition of The 

Weather Channel. The spinoff of the Dr 

Pepper Snapple Group from former parent 

Cadbury Schweppes saw the firm representing 

the bookrunners and agents providing $4.4 

billion in financing for the transaction. Weil 

Gotshal’s clients on the deal included 

JPMorgan Chase, Goldman Sachs Credit 

Partners, Bank of America, Morgan Stanley 

Senior Funding, and UBS Securities. 

Although unsuccessful due to deteriorating 

credit conditions, the firm served as US 

counsel to Madison Dearborn Partners, 

Merrill Lynch Global Private Equity, 

Providence Equity Partners, and Teachers’ 

Private Capital in the proposed $41 billion 

cross-border leveraged buyout of telecom Bell 

Canada Enterprises. 

Leading lawyers: Warren Buhle, Andrew 

Colao, Daniel Dokos, Angela Fontana and 

Douglas Urquhart 

The departure of Kevin Barnard from 

White & Case has left the firm with a substantial 

gap in its lending practice. Barnard, 

once the head of White & Case’s bank advisory 

practice, left the firm to join rival Arnold 

& Porter in July 2008. While Barnard’s 

absence was seen as noteworthy by many 

competitors, the firm’s lending group sustained 

its activity through a difficult year. 

Recently, a White & Case team represented 

Deutsche Bank in constructing the DIP 

financing for metals recycler Aleris 

International. A New York team consisting of 

Eric Berg, David Joyce, and Evan Hollander 

negotiated the $575 million DIP asset-based 

package. Concurrent with the acquisition 


efforts of Dow Chemical toward rival Rohm 

& Haas, White & Case negotiated a $13 billion 

senior unsecured term loan that was used 

as part of the overall $18.8 billion financing 

for the purchase of Rohm & Haas. 

Leading lawyers: Eric Berg 

Competitors view the loss of Brandon 

Becker to equities fund TIAA-CREF as a significant 

loss for WilmerHale. However, in an 

effort to rebuild its regulatory expertise, the 

firm brought in former general counsel of the 

FDIC, Sara Kelsey, in January 2009. 

Highlights for the firm include advising on 

the regulatory aspects of the merger between 

Direct Edge Holdings and the ISE Stock 

Exchange, as well as those concerned with the 

Nasdaq OMX Group’s purchase of the Boston 

Stock Exchange. WilmerHale advised ISE and 

Nasdaq, respectively. 

Mergers and acquisitions 


Tier 1 






Wachtell Lipton Rosen & Katz 

Tier 2 





Tier 3 





Jones Day 


Tier 4 


Sidley Austin 

Willkie Farr & Gallagher 

Tier 5 

Baker Botts 

Covington & Burling 


Mayer Brown 


White & Case 

Wilson Sonsini Goodrich & Rosati 

“That was the craziest week of my professional 

career” is how one partner describes the 

week of the Lehman Brothers bankruptcy filing 

and its subsequent asset sale to rival 

Barclays. The investment bank’s collapse has 

proved to be the moment of change for how 

corporations and their legal counsel look to 

structure M&A deals, disrupting not only 

potential lending agreements but the stock 

values associated with target companies. 

Needless to say, deal certainty was the most 

prominent issue to come out of this recession 

for M&A lawyers, proving the difference 

between companies acquired in distressed situations 

and those forced to restructure or face 

outright liquidation. The crossover occurring 

between these departments at many firms 

mirrors this fine line between viable M&A 

transactions and those borne out of restructuring 

efforts. 

The absence of leveraged financing in the 

market has forced acquisition structures to 

rely more heavily on cash and equity foundations, 

two commodities in this market that 

companies either believe too valuable or, in 

the case of stock, unfairly priced. “Deal certainty 

two years ago was all about competition. 

You just wanted to make sure you didn’t 

get topped,” says one partner. “Then deal certainty 

turned to how the deal could get closed, 

and that came up from the private-equity 

deals that were hung from the financial collapse.” 

This dislocation between buyer and seller 

left the market largely to the strategic acquisitions 

of distressed competitors. The US financial 

sector witnessed significant consolidation 

as subprime mortgage exposures, a depressed 

capital markets system, and stratospheric 

Libor prices left lending institutions with few 

options to repair their balance sheets. Among 

the headlines to come out of this scenario 

were JPMorgan Chase’s acquisitions of Bear 

Stearns and Washington Mutual, Bank of 

America’s takeover of Merrill Lynch, and 

Wells Fargo’s contested acquisition of 

Wachovia. The prominence of the target companies 

involved in these mergers speaks to the 

direness of the market itself, prompting the 

intervention of the US Treasury Department 

and Federal Reserve to provide government 

guarantees on behalf of the acquirers in order 

to ensure Lehman’s effects on the market were 

not repeated. 

One counter-cyclical sector that has provided 

firms with an unusual amount of transactions 

during the downturn has been pharmaceuticals. 

Three significant deals were 

structured and executed throughout early 

2009, merging Merck with Schering-Plough 

for $41 billion, Genentech with Roche for 

$46.86 billion, and Pfizer with Wyeth for $68 

billion. 

2010 EDITION

Mergers and acquisitions | United States 

971 


Financial institutions have long been a 

strength for Cravath Swaine & Moore, bridging 

the success the firm has found in its lending 

capacities with those of the M&A group. 

This type of expertise put the firm in a unique 

position for the fallout that was to come as a 

result of the credit crisis. As losses mounted 

for Merrill Lynch following the bankruptcy of 

Lehman Brothers, the firm was retained as 

counsel by the investment bank’s independent 

directors for the proposed $52 billion, allstock 

merger with rival Bank of America. The 

deal received intense oversight from the federal 

government, making its completion essential 

to safeguard against any further collapse of 

institutions within the banking sector. 

Cravath served in a similar capacity to the 

board of directors for National City during 

the Cleveland, Ohio, lender’s negotiated sale 

to PNC Financial Services in October 2008. 

Like others in the sector, the $5.2 billion distressed 

acquisition came as a consequence of 

subprime mortgage investments. 

Cravath increased its presence in the pharmaceutical 

sector this year, acting in two highprofile 

transactions on behalf of the target 

companies. The acquisition of Rohm & Haas 

by rival Dow Chemical saw Cravath advising 

the Haas family trusts, holder of one-third of 

all common stock in the target company. In 

addition to utilising its M&A lawyers on the 

$16.8 billion transaction, Cravath was also 

forced to enlist litigators following a Delaware 

court battle over closure of the transaction. 

The litigation ultimately ended after the Haas 

trust announced it would purchase an additional 

$2 billion equity stake in Dow 

Chemical with its merger profits. 

Similarly, pharmaceutical manufacturer 

Bristol-Myers Squibb hired the firm to negotiate 

the sale of its ostomy products arm, 

ConvaTec, to private equity investors Avista 

Capital and Nordic Capital Fund VII. 


Scott Barshay 

Allen Finkelson 

Philip Gelston 

Richard Hall 

Robert Townsend 


As lead counsel to Citigroup through the economic 

downturn, Davis Polk & Wardwell was 

dealt its share of distressed transactions in the 

last year. Under the leadership of George 

Bason, Davis Polk’s M&A group helped 

Citigroup establish the corporate entities of 

Citicorp, consisting of Citi’s banking operations, 

and Citi Holdings, which consists of its 

brokerage and asset-management teams. A 

joint venture with rival Morgan Stanley was 

also established, combining Citi’s Smith 

Barney brokerage capabilities with the Global 

Wealth Management Group at Morgan. 

Davis Polk also prepared the preliminary deal 

structure for what would have been a $2.2 billion 

rescue acquisition of Wachovia’s banking 

operations. The deal was ultimately terminated 

after rival Wells Fargo negotiated a preferred 

$15 billion acquisition for the entire 

company. 

Outside the financial sector, Davis Polk 

negotiated the acquisition of the Longs Drug 

Stores Corporation for CVS Caremark, ultimately 

bidding three times to the target’s controlling 

shareholders before a deal was 

reached. One highlight of the $2.6 billion 

acquisition for CVS was Longs’ retail pharmaceutical 

operations throughout the western 

US. 

George Bason and John Bick were also 

recently retained by PepsiCo in an attempt by 

the beverage maker to consolidate its holdings 

in its worldwide bottling operations. In what 

would equal a $6 billion acquisition, PepsiCo 

is attempting to consolidate the outstanding 

common stock of PepsiAmericas and the Pepsi 

Bottling Group. One unique detail of the 

transaction to date is that the entire transaction 

is contingent upon both deals receiving 

approval. 


John Amorosi 

George Bason 

Paul Kingsley 

William Taylor 


The diversity of Simpson Thacher & Bartlett’s 

M&A clientele speaks of the broad expertise 

underlying the firm’s senior talent. 

Throughout the financial downturn, Simpson 

Thacher was a leading choice for companies 

like Anheuser-Busch, Vodafone, and the US 

Treasury Department thanks to the reputation 

established by practitioners like Alan Klein, 

John Finley, and the firm’s M&A chair 

Charles “Casey” Cogut. 

Added to this is the work conducted by 

Lee Meyerson in connection with the 

Treasury’s $757 billion Troubled Asset Relief 

Program (Tarp). Meyerson was retained for 

the drafting and implementation of the Tarp 

program’s investments throughout the financial 

sector, advising on transactions like those 

that buoyed distressed lenders Bank of 

America and Citigroup with separate $20 billion 

preferred stock acquisitions on behalf of 

the government. 

“They’re the best firm that I’ve used. There 

are many fine M&A firms; we’ve just had very 

positive experiences with them and good 

results,” says a client. “Our board liked them, 

our management team liked them. We 

thought the work was outstanding and the 

support level was very high.” 

In an example of the cross-border capabilities 

amassed by Simpson Thacher through 

the years, the firm served as counsel to the 

Aluminum Corporation of China (Chinalco) 

in its proposed minority stake in Australian 

mining company Rio Tinto. In what would 

have been the largest foreign investment to 

come from a Chinese corporation, the $19.5 

billion deal was ultimately dissolved due to 

Australian regulatory concern and shareholder 

opposition within Rio Tinto. Simpson 

Thacher also conducted the acquisition 

finance work for the transaction, securing $21 

billion from a syndicate of Chinese banks in 

preparation for the deal’s closure. 

Another prominent cross-border transaction 

was the firm’s advising of Anheuser- 

Busch in its $52 billion merger with the global 

beverage maker InBev. Simpson Thacher’s 

Charles Cogut represented the outside directors 

of Anheuser-Busch on the transaction. 

As the global telecom market consolidated 

further in 2008 and 2009, Simpson Thacher 

was hired by Vodafone for the $28.1 billion 

acquisition of Alltel. The acquisition of the 

fifth-largest mobile phone operator worldwide 

was executed for $28.1 billion in cash and an 

agreement that makes Vodafone assume all 

debt previously held by Alltel. 


Charles Cogut 

John Finley 

Gary Horowitz 

Alan Klein 

Sean Rodgers 

Robert Spatt 

Skadden Arps Slate Meagher & 

Flom 

There’s no question that M&A is the premiere 

practice at Skadden. A host of offices worldwide 

and a reputation for a prolific deal flow 

make the firm a contender on every high-profile 

deal that comes to market. Though the 

firm was absent from much of the recent distressed 

activity in the financial sector, 

Skadden still produced a solid year of representations 

through counsel for Anheuser- 

Busch, Applera, Wrigley, and Time Warner 

Cable. Despite this success among corporate 

acquirers, competitors see the departures of 

New York partners David Fox and Daniel 

Wolf to rival Kirkland & Ellis as significant 

losses for the practice. 

In perhaps its largest transaction of the 

year, Skadden’s Paul Schnell and Thomas 


972 

United States | Mergers and acquisitions 

Greenberg led the negotiation for Anheuser- 

Busch’s takeover by InBev. After a series of 

bids, the two entities agreed upon a share 

price of $70 for Anheuser-Busch, pushing the 

final price tag to $52 billion and creating the 

largest beer producer in the world. 

Skadden produced similar results in its 

representation of the Wrigley company 

through its $23 billion merger with chocolate-maker 

Mars. Due to the financial crisis, 

the financing of the deal was forced into an 

offbeat path. While the acquirer assumed $11 

billion in equity commitments, and Goldman 

Sachs lent $5.7 billion, it was investment 

manager Berkshire Hathaway that finalised 

the deal with its assuming $4.4 billion in subordinated 

debt and a $2.1 billion minority 

stake in the new company. 

The break-up of companies also proved a 

valuable skill set for M&A firms this year. In 

June 2008, Skadden was hired by the Loews 

Corporation to engineer the spinoff of its 

tobacco manufacturing arm Lorillard. Valued 

at $12.5 billion, the newly-independent 

Lorillard is perhaps best known for its 

Newport line of cigarettes. Skadden has also 

been retained as advisor to the special committee 

of the board for Time Warner Cable in 

connection with the cable provider’s spinoff 

from its one-time parent, Time Warner. 


Roger Aaron 

Stephen Arcano 

Peter Atkins 

Howard Ellin 

Franklin Gittes 

Brian McCarthy 

Paul Schnell 


As one competitor says, “The real star in tier 

one this year is Sullivan & Cromwell because 

of their expertise in the banking world.” 

Indeed the firm has translated its prominence 

in the regulatory market into some of the 

most high-profile M&A work to be done this 

year. Furthermore, Jay Clayton and Mitchell 

Eitel are viewed by peers as mainstays of the 

group. One client says, “They’ve been 

extremely thoughtful. We’ve given them deals 

with lots of twists and turns, the types of deal 

you would not give to a lower class law firm, 

and they have always been really, really good.” 

The firm served as co-counsel with 

Simpson Thacher & Bartlett to Wachovia 

during the bank’s $15.1 billion takeover by 

Wells Fargo, simultaneously advising another 

distressed target in National City as that 

lender was acquired for $5.6 billion by PNC 

Financial Services. And following the bankruptcy 

announcement of Lehman Brothers, 


Sullivan & Cromwell teamed with Clifford 

Chance and Cleary Gottlieb to represent 

Barclays on the sale of Lehman’s North 

American banking and capital markets operations. 

An additional highlight from the financial 

sector is the firm’s counselling of 

Mitsubishi UFJ Financial Group through its 

minority stake investment into Morgan 

Stanley, estimated at $9 billion. 

Beyond its regulatory strengths, Sullivan 

& Cromwell landed the role of US counsel to 

InBev in the European brewer’s acquisition of 

Anheuser-Busch. Following months of negotiations, 

the $52 billion takeover produced 

one of the five largest consumer products 

companies in the world. 


Francis Aquila 

Jay Clayton 

Mitchell Eitel 

Joseph Frumkin 

James Morphy 


Wachtell Lipton Rosen & Katz is smaller than 

many of its competitors by a sizeable degree. 

And the firm’s intense focus on the M&A market 

may seem narrow in an environment where 

corporate law firms are continuously expanding. 

But such things don’t matter because 

Wachtell has turned this working model into a 

commanding market presence that is consistently 

renewed by its ceaseless deal flow. Its 

clientele are enviable, and the economic downturn 

has only enhanced the firm’s reputation for 

technical expertise. If it’s a significant M&A 

transaction, chances are Wachtell has been considered 

as counsel on one side or the other. 

The firm was sought as counsel on a number 

of the mergers in the financial sector as a 

result of the credit crisis. Wachtell negotiated 

across the table from the US Treasury three 

times as it separately represented Bank of 

America, Wells Fargo, and GMAC in their 

receiving $35 billion, $25 billion, and $5 billion 

in respective bailout funds through the 

Troubled Asset Relief Program (Tarp). Wachtell 

subsequently advised Wells Fargo in its acquisition 

of distressed lender Wachovia in October 

2008. Other highlights include the firm’s advising 

PNC Financial Services in the bank’s $5.2 

billion acquisition of National City and its representation 

of Capital One Financial as the 

acquirer of Chevy Chase Bank for $5 billion. 

Wachtell was also counsel in two of the more 

prominent strategic acquisitions in the pharmaceutical 

sector this year as well. The firm counselled 

Schering-Plough in its sale to rival Merck 

for $41 billion, and advised Wyeth in its cash 

and stock acquisition by Pfizer for $68 billion. 


Nicholas Demmo 

Adam Emmerich 

Edward Herlihy 

Richard Katcher 

David Katz 

Lawrence Makow 


Hamilton 

Oddly enough, the recession has been kind to 

Cleary Gottlieb Steen & Hamilton’s corporate 

department. The firm’s prominence in the 

financial sector, in addition to its cross-border 

expertise and strong bench of M&A talent, has 

led to a host of high-profile representations 

throughout the year. 

Recommended by peers for his transactional 

knowledge, Victor Lewkow led a team that 

included Robert Davis, David Leinwand, and 

Duane McLaughlin in the acquisition of 

Lehman Brothers’ North American investment 

banking and capital markets operations by 

Barclays. In what can only be described as a firesale 

in the shadow of Lehman’s demise in 

September 2008, the British financial services 

provider acquired the distressed assets for a mere 

$250 million. In the end, Barclays walked away 

from the transaction with Lehman assets and 

US offices for the greatly reduced price of $1.75 

billion. 

In domestic financial work, Cleary served as 

counsel in several rescue financings between 

lenders and the federal government. The first 

came in the firm’s representation of Citigroup in 

its sale of $25 billion in preferred stock and 

common stock warrants to the US Treasury 

Department. Cleary was retained the following 

month by US Bancorp for its own negotiations 

and equity stake sale to the government. 

The firm also served the merger interest of 

Bank of America throughout the year as well. 

Cleary was first retained for Bank of America’s 

$2 billion minority stake in Countrywide 

Financial, only to return months later to negotiate 

the $4 billion all-stock acquisition of the 

mortgage lender. 

Beyond the financial markets, Cleary 

reminded the legal market how it earned its reputation 

for cross-border representations. 

Advising the Mexican baking group Grupo 

Bimbo, Cleary negotiated the acquisition of the 

bread and baking divisions of Dunedin 

Holdings and parent George Weston Foods for 

$2.5 billion. 


Victor Lewkow 

Benet O’Reilly 

Daniel Sternberg 

Neil Whoriskey 

2010 EDITION

Mergers and acquisitions | United States 

973 


Beyond Latham & Watkins’ reputation for 

representing private-equity funds in their 

acquisition work, the firm has developed a 

healthy practice in the public market as well. 

Global co-chairs Mark Gerstein and Charles 

Nathan split the US practice between New 

York and Chicago, and both enjoy praise from 

peers for their management of the group overall. 

The pharmaceutical and biotech sectors 

were particularly active for lawyers in 

Latham’s M&A group this year. 

Pharmaceutical manufacturer Eli Lilly and 

Company retained Adel Aslani-Far and 

Bradley Faris in late 2008 to handle the negotiations 

for its strategic acquisition of rival 

ImClone Systems. The final $6.4 billion bid 

won Eli Lilly the much-desired oncologic 

research division at ImClone and the title of 

the largest acquisition in the company’s history. 

Latham also served as counsel to the special 

committee of the board of directors for 

Genentech during the privatisation of the 

biotech in early 2009. The $46.8 billion 

acquisition by Roche Holdings came at a time 

of significant consolidation in the pharmaceutical 

industry, though the takeover of 

Genentech may have been the least suspenseful 

due to Roche’s existing majority stake in 

the company. 

Latham’s pronounced reputation in the 

tech community also served it well this year, 

advising Advanced Micro Devices (AMD) 

and software developer Oracle in their own 

M&A transactions. Following a bid by 

Mubadala Development to increase its ownership 

stake by 11%, AMD hired Latham to 

negotiate the sale and subsequently establish a 

joint venture between the two involving 

AMD’s microchip manufacturing facilities. 

This time acting for the acquirer, Latham represented 

Oracle in its $8.5 billion strategic 

acquisition of BEA Systems. The transaction 

adds breadth to the Oracle brand through 

BEA’s software specialising in the interactions 

of computer software with database systems. 


Mark Gerstein 

Charles Nathan 

John Newell 

Paul Tosetti 


In a year when no one sector could be relied 

on for consistent transactional activity, the 

diversity of clientele at a firm like Shearman 

& Sterling becomes an enviable commodity. 

The firm acted in the financial, pharmaceutical, 

chemical, petrochemical, and tech sectors 

in some of its most prominent transactions 

this year, drawing talent from national offices 

like New York, San Francisco, and 

Washington DC, as well as a network of 15 

international offices. 

The close relationship between the firm’s 

lending group and its M&A platform made 

Shearman & Sterling a natural choice for its 

role advising Merrill Lynch in the investment 

bank’s merger with Bank of America. As a 

result of the shattered market confidence subsequent 

to Lehman Brothers’ collapse and the 

greater recession, Shearman was brought in to 

help negotiate the $50 billion stock exchange 

that would make Merrill a subsidiary of Bank 

of America. Like similar distressed transactions 

in the financial sector, Shearman’s John 

Madden, John Marzulli, and Scott Petepiece 

faced an extremely limited timeframe to execute 

the transaction; in this case the weekend 

of Lehman’s pending bankruptcy. 

Shearman lawyers also served as counsel to 

Dow Chemical during the company’s recent 

acquisition of Rohm & Haas. John Marzulli 

navigated the $16.8 billion deal to a close for 

Dow, even negotiating a clause in the merger 

agreement for the Haas family trust to acquire 

an additional $2 billion in equity in the new 

company. Shearman also arranged Dow’s deal 

financing through a $13 billion bridge facility 

with Citigroup, Merrill Lynch, and Morgan 

Stanley, as well as private placements of preferred 

stock with Berkshire Hathaway and the 

Kuwaiti Investment Authority (KIA). 

In the petrochemical sector, Shearman is 

also serving as US counsel to the Canadian 

energy corporation Suncor Energy. Suncor 

announced its merger with rival Petro-Canada 

in March 2009 for an estimated price of $15.8 

billion. 


Stephen Besen 

George Casey 

Peter Lyons 

John Marzulli 


The thriving restructuring practice at Weil 

Gotshal & Manges is credited by peers as driving 

many other corporate platforms of the 

firm in the last year, M&A included. The 

most prominent example of this is Weil’s handling 

of the Lehman Brothers bankruptcy file. 

Facing more than $600 billion in debt against 

an estimated $639 billion in asset holdings, 

the international investment bank filed for 

bankruptcy in September 2008, creating a 

financial maelstrom that ultimately triggered 

an immediate consolidation in the US financial 

market. From this scenario, Weil’s M&A 

group engineered the sale of two of Lehman’s 

more alluring assets in its investment banking 

and investment management divisions. After 

securing a $1.35 billion fire-sale of the investment 

banking operations to Barclays, Weil 

conducted the auction for the investment 

management division, which produced 

Neuberger Berman as a self-sustaining entity 

going forward. 

Beyond their bankruptcy practice, Weil 

also managed to secure roles in the strategic 

acquisitions of two prominent US television 

networks. Weil’s Howard Chatzinoff and 

Raymond Gietz negotiated the $1.8 billion 

acquisition of CNET Networks for the CBS 

Corporation, while Chatzinoff and Jay Tabor 

subsequently handled NBC’s $3.5 billion 

takeover of The Weather Channel. In 

September 2008, the firm also represented the 

pharmacy chain Walgreens as the target of a 

$3 billion takeover by rival Longs Drugs. 

Michael Aiello and corporate group co-head 

Thomas Roberts led the transaction from the 

firm’s New York office. 


Michael Aiello 

Howard Chatzinoff 

Frederick Green 

Thomas Roberts 

Jay Tabor 


Cadwalader Wickersham & Taft’s ability to 

appear as lead counsel in some of the larger 

transactions in the financial and biotech sectors 

runs counter to what many peers view as 

a significantly smaller M&A group when 

compared to rival firms. In light of such criticism, 

Cadwalader has expanded the group this 

year through the lateral addition of Gregory 

Patti from O’Melveny & Myers. Furthermore, 

the talents of Dennis Block have moved competitors 

to describe him as the pillar of the 

overall practice and essential in allowing 

Cadwalader to punch above their weight in 

the M&A market. 

The two highlights for Cadwalader’s M&A 

group this year came through Dennis Block’s 

representations of Pfizer and investment bank 

Bear Stearns. Following on from massive losses 

related to depreciating mortgage investments, 

Bear Stearns was forced into a distressed 

merger with JPMorgan. Conducted 

over the course of a weekend, the merger’s 

stressful conditions are exemplified in the 

$1.5 billion fire-sale price JPMorgan ultimately 

paid for its one time rival. 

Through July 2009, Dennis Block and 

William Mills also advised pharmaceutical 

manufacturer Pfizer in its strategic acquisition 

of Wyeth for an estimated $68 billion. “Their 

attention to detail, their promptness, all that 


974 

United States | Private equity 


is very good,” says a client. “They definitely 

would be in my shortlist or rolodex.” 

Leading lawyers: Dennis Block 

Debevoise & Plimpton has a way of 

sneaking up on its competitors, appearing in 

an assortment of high-profile deals despite the 

small size of its M&A platform. Two reasons 

for this can be seen in the firm’s proven M&A 

talent in crossover work from its reputed private 

equity work and from senior talent in its 

group co-chairs, Paul Bird and Jeffrey Rosen. 

Rosen, with William Regner, recently advised 

Verizon Wireless in the acquisition of mobile 

phone rival Alltel. Estimated at a combined 

client base of more than 80 million, the $28.1 

billion merger created the largest cellular 

phone service provider in the US. 

Debevoise also proved a prominent player 

in the insurance market as well this year. 

Advising AIG, Nicholas Potter executed the 

sale of the distressed insurer’s Canadian life 

insurance division to BMO Financial Group 

for a reported $263 million. Potter also acted 

for the insurer Liberty Mutual during its $6.2 

billion takeover of rival Safeco in September 

2008. 

Leading lawyers: Paul Bird and Jeffrey Rosen 


received a significant amount of attention 

from peers for its representations in the pharmaceutical 

industry this year. Competitors see 

the management of the firm’s corporate chair, 

Robert Schwenkel, as having a particular 

influence on the quality of its recent representations. 

“Robert Schwenkel is fantastic,” says 

one competitor. 

The most notable transactions for Fried 

Frank came in representing returning client 

Merck during its merger with rival Schering- 

Plough. Fried Frank’s David Shine and Philip 

Richter arranged the $41 billion deal to be 

executed for 44% cash and 56% stock, relying 

on the firm’s banking group to design the $8.5 

billion in financing committed by JPMorgan. 

David Shine is also advising Merck in its 

acquisition of a $130 million portfolio of 

biosimilar products and a manufacturing 

plant of rival Insmed. 

Leading lawyers: Philip Richter, Robert 

Schwenkel and David Shine 

Gibson Dunn & Crutcher has had a busy 

year serving the Kuwaiti Investment 

Authority (KIA). After first serving the sovereign 

wealth fund last year in its rescue financing 

of Merrill Lynch, Gibson Dunn acted as 

its advisor on transactions with Dow 

Chemical and Citigroup. KIA served as one of 

the financiers in Dow Chemical’s acquisition 

of rival Rohm & Haas, offering up $1 billion 

of preferred securities beside a similar $3 billion 

loan from Berkshire Hathaway. The fund 

also provided Citigroup with $3 billion in 

exchange for a minority stake in the bank following 

record investment losses. Jeffrey 

Trinklein and Stephan Haimo served as primary 

counsel to KIA in all transactions. 

Elsewhere in the financial sector, Gibson 

Dunn represented Lazard in October 2008. 

Acting out of the firm’s New York office, 

Barbara Becker advised the investment bank 

in its role as financial advisor to Mitsubishi 

UFJ Financial Group during its $9 billion 

investment into Morgan Stanley. 

Leading lawyers: Dennis Friedman, Kevin 

Kelley and Jonathan Layne 

Mayer Brown’s cross-border expertise, particularly 

into Latin America, leads the firm 

into transactions like the sale of George 

Weston’s baking subsidiaries to Grupo Bimbo. 

George Weston retained the firm to negotiate 

the sale of its Dunedin Holdings subsidiary to 

its Mexican rival in January 2009. The transaction 

earned the Canadian food processor 

$2.5 billion in new capital. 

Mayer Brown was also retained in the 

strategic merger of Allied Waste Industries 

with rival Republic Services. Representing 

Allied Waste, the firm was forced to close the 

deal as hostile bids from industrial rival Waste 

Management looked to upset the proposed $6 

billion merger. 

The international capabilities of Sidley 

Austin position the firm for cross-border representations 

like its recent action for BNP 

Paribas. Sidley’s Paul Adams, Laura Barzilai, 

and Scott Freeman helped the European 

lender make inroads into the US market 

through the acquisition of the prime brokerage 

assets of indebted US rival Bank of 

America. Sidley’s involvement in the insurance 

sector also saw it act for the special committee 

of the board of directors for 

Nationwide Financial. Negotiated for a selling 

price of $2.4 billion, the remaining public 

common stock of Nationwide Financial was 

acquired by affiliate Nationwide Mutual 

Insurance in January 2009. 

Leading lawyers: Scott Freeman and Frederick 

Lowinger 

Peers see the recent departure of Daniel 

Dufner to Linklaters as a significant loss of talent 

for the M&A group at White & Case. 

Dufner and Daniel Latham were the leading 

partners for the firm’s representation of health 

benefits provider WellPoint during its recent 

sale of its NextRx subsidiary to Express 

Scripts. Negotiation of the $4.6 billion sale 

included a future joint venture of sorts 

between the two companies with Express 

Scripts signing a ten-year agreement to 

become a preferred prescription provider for 

WellPoint. 

White & Case also maintained its presence 

in the steel industry through the representation 

of the Swedish manufacturer 

SSAB. Negotiating across from the acquirer 

in Evraz Group, White & Case executed the 

sale of tubular manufacturing subsidiaries 

throughout North America. The assets in 

question were familiar to the firm as they 

had acted only two years ago for SSAB in 

acquiring them from their Canadian competitor 

Ipsco. 

Private equity – fund formation 


Tier 1 




Tier 2 



Ropes & Gray 


Tier 3 

Akin Gump Strauss Hauer & Feld 






Proskauer Rose 


Private equity – transactions 


Tier 1 




Tier 2 





Ropes & Gray 



Tier 3 







The romance between private equity and the 

financial sector never reached the heights 

some partners had predicted a year ago, 

though the inroads made into lending institutions 

because of the recession have challenged 

the historic identities of many funds. 

2010 EDITION

Private equity | United States 

975 

The greatest example of this shift can be 

seen in the acquisition of the distressed 

California lender IndyMac by a consortium of 

private-equity groups. Placed into receivership 

with the Federal Deposit Insurance 

Corporation (FDIC) in July 2008, IndyMac 

was purchased for $13.9 billion by a group of 

private investors in IMB Holdings that 

allowed the bank to emerge as OneWest Bank 

almost a year later. 

Appeasing regulatory constraints through 

shared minority stakes in a central holding 

company, the transaction highlights how 

many private equity shops have survived the 

recession through mediated opportunism. As 

one partner puts it, “I don’t think anything’s 

ever permanent in private equity. It constantly 

changes and evolves, and the firms that are 

good evolve with it”. 

Lacking the leveraged financing that 

fuelled so many of the marquee private-equity 

deals in previous years, many groups were 

forced to pull back and become content with 

manoeuvres in the middle market. “The market 

isn’t at a standstill. The train is on the 

tracks, it’s just going very slow,” says one partner. 

Because of this restrained activity, those 

firms with only one or two large private-equity 

clients suffered compared to those 

employed by a variety of mid-market funds. 

But even this activity brought its perils, as 

mid-market lawyers suggest even greater difficulties 

in the smaller transactions because of 

the reduced margin for error beyond simply 

obtaining financing. No matter their client 

base, most firms spent the year examining 

client portfolios, attempting to refinance portfolio 

companies and restructure funds and 

their formation documents. 

The aftermath of Bernard Madoff’s Ponzi 

scheme brings many partners to conclude that 

intensified oversight of the industry is on the 

horizon. What form these regulations will 

take is unclear, though the spectre of a growing 

number of investigations by the Securities 

and Exchange Commission (SEC) in an 

attempt at greater fund transparency is expected. 


Debevoise & Plimpton is top again in the 

world of private equity. A rounded concentration 

between fund formations and transactional 

activity has given the firm its top spot 

in the rankings for the second year in a row, 

and has given peers of the firm reason to comment 

on the quality of the practice at 

Debevoise. “Debevoise runs a disciplined 

shop. They do nice work,” says one client. 

Another adds, “Debevoise is probably the 

broadest group.” For private equity-sponsored 

buyouts, one competitor says “Franci 

Blassberg at Debevoise is a terrific lawyer”. 

The transactional highlight of the year for 

Debevoise may well have been its advising of 

the Carlyle Group in July 2008. Acting out of 

New York, Jeffrey Rosen negotiated Carlyle’s 

$2.54 billion majority stake in Booz Allen 

Hamilton’s government consultation group, a 

business that advises on the managerial and 

technological structures of civil governments. 

Debevoise was retained on a similar government-related 

acquisition by representing 

Providence Equity Partners in its $1.5 billion 

takeover of US Investigation Services, the 

largest security investigations outsourcer of 

the US federal government. 

Returning client Oaktree Capital 

Management hired Debevoise for the setup of 

two funds throughout the year aimed at distressed 

investments as a result of the recession. 

The first was OCM Opportunities Funds 

VIIb, which raised $10.9 billion in May 2008 

and secured the designation of the largest distressed 

debt fund operating upon its closing. 

The second Oaktree fund was the OCM 

European Principal Opportunities Fund II, 

which raised €1.6 billion in July 2008. Both 

funds were established by Michael Harrell, 

who peers recommend with comments like, “I 

can say confidently that Mike Harrell is a brilliant 

funds lawyer,” and “Mike Harrell is by 

leaps and bounds the best lawyer at the firm.” 


Franci Blassberg 

Woodrow Campbell 

Margaret Andrews Davenport 

Michael Harrell 

Jeffrey Rosen 

David Schwartz 


Serving the mid-market doesn’t mean you 

can’t be a market leader, and the private equity 

group at Kirkland & Ellis proves just that. 

Senior talent like Bruce Ettelson, who runs 

the firm’s funds practice out of Chicago, and 

transactional adviser Jeffrey Hammes offer 

clients a depth of expertise and confirm with 

competitors Kirkland’s commitment to the 

market. “Kirkland clearly has a strong bench,” 

notes one peer. “Kirkland is extremely disciplined. 

They have clearly marked their space 

in the market,” says another. This reputation 

has attracted returning business from private 

equity icons like Bain Capital, Golden Gate 

Capital, and Madison Dearborn Partners. 

Through the financial downturn, Bruce 

Ettelson and Chris Kallos advised Madison 

Dearborn toward the closing of Madison 

Dearborn Capital Partners VI. Despite the 

insecurity broadly affecting financial markets, 

the fund was able to raise $7.5 billion in commitments 

for the Kirkland client upon closing 

in December 2008. Ettelson was again the 

lead in establishing Golden Gate Capital’s 

Capital Opportunity Fund which holds a dual 

interest in hedge fund and private equity 

transactions. 

Aside from Golden Gate’s fund formation, 

Kirkland also serves their client in its buyout 

capacities. In November 2008, Jeffrey 

Hammes, Stephen Oetgen, and Arshad 

Ahmed led Golden Gate’s acquisition of the 

US Silica Company for $337 million. The 

acquisition of the second-largest explorer and 

processor of industrial sand in the US was 

structured around $200 million in equity and 

mezzanine structures from Golden Gate along 

with BNP Paribas’ $102 million in debt commitments 

and a $35 million revolving credit 

facility from Wachovia. Hammes also led 

Golden Gate’s purchase of a 22% stake in the 

British software company Micro Focus 

International, worth a reported $166 million. 


Bruce Ettelson 

Jeffrey Hammes 

Chris Kallos 

Sarah Kirson 

Kirk Radke 


It’s no secret that private equity representations 

are the main driver of Simpson Thacher 

& Bartlett’s overall corporate identity. Highprofile 

clients like Blackstone and Kohlberg 

Kravis & Roberts (KKR) offer a similar reputation 

to their counsel of choice, leading one 

competitor to say of Simpson, “They have my 

full respect, and I think they’re an extremely 

fine firm.” 

Another peer recognises how the firm has 

integrated its notoriety in the regulatory space 

into its work in the private-equity market. 

“Simpson is obviously the grand-daddy of all 

the private-equity law firms. They also have a 

fair amount of experience on the financial 

institution side of the fence ... and are well 

positioned in the financial institution space to 

be a player there.” 

This was one of the reasons why Simpson 

was chosen as counsel to JC Flowers, MSD 

Capital, and Stone Point Capital in connection 

with the private-equity consortium that 

purchased distressed lender IndyMac from the 


(FDIC) in March 2009. Nearly a year after its 

seizure by the federal government, the consortium 

agreed to acquire IndyMac for $13.9 billion 

through a shared holding company with 

stipulations that have the FDIC assuming 


976 

United States | Private equity 

partial responsibility for the losses that led to 

the California lender’s seizure. 

“I’ve worked with them the entire time I’ve 

been here, for 18 years,” says one client. “We 

use Simpson broadly because we’ve done a lot 

of corporate real-estate deals. We have the 

utmost confidence in them in everything we 

do. They have a 99% market share with us; 

they’re part of the fibre of our company.” 

Simpson was also active for historic client 

Blackstone this year with two mid-market 

acquisitions, both in October 2008. Bill 

Dougherty advised in Blackstone’s $1.6 

takeover of the Apria Healthcare Group and 

Caroline Gottschalk and Michael Wolitzer 

negotiated the acquisition of the private security 

firm Allied Barton Security Services for an 

undisclosed amount. “Simpson’s got a 

tremendous bench,” says one competitor of 

the firm’s ability to handle the high deal flow 

from its clients. 


Thomas Bell 

Richard Capelouto 

Charles Cogut 

Gary Horowitz 

Brian Stadler 

Michael Wolitzer 


Hamilton 

Rivals define Cleary Gottlieb Steen & 

Hamilton’s historic association with the Texas 

Pacific Group (TPG) as its anchor in the private 

equity market. Cleary has become the 

lead outside counsel to TPG in transactional 

and fund formation matters with no sign of 

change on the horizon. In the last year, Cleary 

developed two cross-border funds for TPG in 

TPG Financial Partners, with its focus on the 

financial sector, and TPG Partners VI, which 

will focus on distressed opportunities in the 

US and Europe through an estimated $18 billion 

in commitments. Michael Gerstenzang 

and Elizabeth Lenas acted in both instances to 

create TPG’s new funds. Gerstenzang in particular 

draws compliments from competitors 

for his abilities in fund-formation. 

In buyout work, Cleary acted also as lead 

counsel to TPG and Goldman Sachs Capital 

Partners in one of the larger transactions to 

close in the recessionary market. The sale of 

telecom Alltel creates the largest cellular telephone 

provider in Verizon Wireless, which 

paid $28.1 billion for its competitor. The sale 

of Alltel comes full circle for Cleary after 

advising TPG and Goldman Sachs in its original 

acquisition in 2007. 

Another highlight for Cleary’s privateequity 

group was its role as lead counsel to the 

holding company created by a private equity 


consortium to acquire IndyMac in March 

2009. Now known as OneWest Bank, the 

lender was acquired for $13.9 billion from the 


(FDIC) by IMB HoldCo, an investor consortium 

that included: Dune Capital, JC 

Flowers, MSD Capital, Paulson & Co, Stone 

Point Capital, Soros Fund Management, 

American Capital Partners, and Silar Advisors. 

Paul Glotzer and William Groll led the transaction 

for the consortium, structuring the 

deal to comply with federal ownership laws by 

allowing no one private equity investor to 

own more than 10% of the prevailing financial 

institution. 


Michael Gerstenzang 

David Leinwand 

Elizabeth Lenas 

Benet O’Reilly 

Robert Raymond 

Michael Ryan 

Paul Shim 


The strength of Davis Polk & Wardwell’s 

overall M&A platform lends an immediate 

advantage to the firm’s efforts in the private 

equity market. Led by George Bason out of 

New York, the firm’s cross-border expertise 

and complementing experience in financing 

and regulatory structures makes them an 

annual contender for mid-market transactional 

work. 

Since August 2008, Davis Polk has acted as 

counsel in a series of acquisitions on behalf of 

Metalmark Capital and its various investment 

partners. The firm first advised Metalmark in 

cooperation with Greenhill Capital Partners, 

structuring the $305 million acquisition of oil 

& gas developer BreitBurn Energy through 

$295 million in cash and the sale of $10 million 

in debt financing. A similar investment 

into the oil & gas industry saw the firm representing 

Metalmark and Waud Capital 

Partners on their $300 million majority stake 

investment in Maxum Petroleum. Finally, in 

January 2009, Davis Polk negotiated the sale 

of the Direct Response Corporation to Trinity 

Universal Insurance Company. Acting on 

behalf of Metalmark and Morgan Stanley 

Capital Partners III, Davis Polk’s John Bick 

negotiated an agreed selling price of $220 million 

for the car-insurance unit. 


George Bason 

John Bick 

Daniel Kelly 

Leonard Kreynin 

Carole Schiffman 


With an established presence in the transactional 

market, Latham & Watkins spent the 

last year developing its upstream talent in 

fund formation. November 2008 brought the 

lateral additions of Andrea Schwartzman and 

Kathleen Walsh from rival Mayer Brown. 

Brynn Peltz was also brought in from Clifford 

Chance in April 2009, who has a regulatory 

and compliance background to her fund 

work. These additions are already providing 

the firm with a boost to its deal flow, evidenced 

by Kathleen Walsh’s ongoing actions 

for Onex Partners in establishing a $4.5 billion 

fund for the private-equity group. 

An increased private-equity presence in 

combination with the firm’s project finance 

expertise made Latham a natural fit for the 

representation of Puget Holdings in early 

2009. Consisting of investment funds owned 

by Macquarie Infrastructure Partners, Puget 

Holdings hired Latham to execute the privatisation 

of the electric and natural gas utility 

Puget Energy and its subsidiary, Puget Sound 

Energy for $7.4 billion. Edward 

Sonnenschein and Taurie Zeitzer handled the 

file for Latham from the firm’s New York 

office. 

In August 2008, Latham’s Daniel Lennon 

also advised historic client The Carlyle Group 

in its sale of the steel pipe manufacturer, John 

Maneely Company. Despite Latham’s negotiation 

of a final asking price of $3.5 billion for 

Carlyle’s Maneely unit, the deal was ultimately 

terminated due to sudden losses by Russian 

acquirer Novolipetsk Steel. 

One historic client of the firm recommends 

New York partner Howard Sobel for 

his transactional knowledge. “We’ve actually 

used Latham since the 1980s. We use more 

than one firm, but Howard runs our transaction 

business. He’s been our go-to guy for 

deals,” says the client. “The number one thing 

is Howard takes an extremely intensive handson 

approach to our transactions. As opposed 

to having things delegated to junior people, 

he’s there every step of the way on the deal for 

us.” 


Barton Clark 

Scott Klein 

Daniel Lennon 

Raymond Lin 

Howard Sobel 

Edward Sonnenschein 

Kathleen Walsh 


Weil Gotshal & Manges has engineered a 

sophisticated private-equity team in upstream 

and downstream matters through a host of 

2010 EDITION

Project finance | United States 

977 

mid-market representations and a stable 

bench of senior talent. With Jonathan Soler 

and Jeffrey Tabak heading fund formation 

work and Glenn West and James Westra on 

the transactional side, the private equity team 

at Weil has grown to handle its own independent 

deal flow and, as competitors note, the 

potential crossover work from the firm’s storied 

restructuring group. Weil even went so 

far as to add a partner this year in lateral hire 

Joseph Basile, who joined the firm’s Boston 

office in May 2008. 

The firm’s representations of Lindsay 

Goldberg in the past year exemplify rounded 

services the firm has worked to create for 

their clients. Jonathan Soler was retained by 

the private equity group to establish the buyout 

investment fund Lindsay Goldberg III, 

eventually closing with $4 billion in commitments 

in December 2008. Glenn West 

and Michael Weisser subsequently advised 

Lindsay Goldberg during its acquisition of 

industrial portfolio manager The Brock 

Group. 

One additional highlight is Weil’s recent 

handling of the acquisition of Aeropuertos 

Dominicanos Siglo for Advent International. 

Though the final price tag for the Dominican 

airport manager is undisclosed, the deal was 

structured around equity commitments from 

Advent and debt financing through The Bank 

of Nova Scotia and ING, enabling the first 

leveraged buyout to occur in the Dominican 

Republic. 


David Kreisler 

Jonathan Soler 

Jeffrey Tabak 

Glenn West 

James Westra 


Akin Gump Strauss Hauer & Feld is complimented 

by peers for having grown a solid 

fund-formation practice in recent years. This 

growth has included recent forays into the 

Russian and Eastern European markets, establishing 

the mid-market Russian Retail Growth 

Fund for Agni Capital with commitments of 

$300 million and the €472 million ($680 

million) AIG Black Sea Holdings for 

American International Group (AIG) to 

invest in Bulgaria Telecom. Additionally, Akin 

Gump also prepared the Da Vinci CIS Private 

Sector Growth Fund to be the first investment 

fund to be traded on the Specialist Fund 

Market on the London Stock Exchange. 

Fried Frank Harris Shriver & Jacobson is 

known in the market for its historic relationship 

with Goldman Sachs. As head of the 

firm’s private-equity group, New York partner 

Robert Schwenkel advised Goldman in the 

recent $544 million acquisition of Waste 

Industries USA. The investment bank was 

paired with Macquarie Infrastructure Partners 

for the deal, negotiating a per-share price of 

$36.75 for all outstanding shares in the solid 

waste disposal company. Schwenkel and 

Christopher Ewan are also serving as counsel 

to Permira Advisers in its $2.86 billion privatisation 

of the News Corp subsidiary, NDS 

Group, an internet software developer. 

Fried Frank was also selected as counsel for 

Paulson & Co, one of the six private-equity 

shops that created the acquisition syndicate 

for distressed California lender IndyMac. 

Under the umbrella of IMB Holdings, the 

syndicate acquired IndyMac from the FDIC 

in March 2009 for $13.9 billion, fully privatising 

the bank after public market conditions 

forced it into receivership in 2008. 

Leading lawyers: Christopher Ewan and 

Robert Schwenkel 

Gibson Dunn & Crutcher has established 

itself evenly between fund formation and buyout 

transactions, serving mainly mid-market 

groups and funds that have helped keep the 

practice buoyant in the absence of the marquee 

LBOs that dominated the market before 

the recession. The firm’s private-equity group 

maintains close ties with its M&A platform, 

which allows it the rounded perspective for 

either public or private transactions. This 

knowledge proved useful as Gibson Dunn’s 

Jeffrey Le Sage was retained by the Apria 

Healthcare Group in October 2008, negotiating 

the leveraged buyout by the Blackstone 

Group for a final price of $1.6 billion. 

The firm was also selected as counsel to 

Goldman Sachs during the investment bank’s 

involvement with the sale of Bright Horizons 

Family Solutions. Sold to Bain Capital 

Partners for $1.3 billion, Goldman served as 

the financial adviser to Bright Horizons’ 

Special Committee of the Board of Directors. 

One client recommends West Coast private-equity 

group leader Jennifer Bellah 

Maguire for her talents in fund formation, 

saying: “Jennifer Bellah does a lot of our fund 

work. She has very deep historical knowledge 

of our fund and fund documents.” 

Leading lawyers: Jennifer Bellah Maguire 

Schulte Roth & Zabel has admitted three 

new US partners into its Investment 

Management Group this year, two through 

internal promotions and one through lateral 

hire. While Ida Wurczinger Draim was 

brought in during 2008 from Dickstein 

Shapiro, Josh Dambacher and Jason Kaplan 

were raised from their respective special counsel 

and associate positions. 

While the firm is mainly known for its 

work with hedge funds, one private-equity 

client notes Schulte’s overall strength in fund 

formation and restructuring. “I think they’re 

extremely good at representing hedge funds 

and private equity in fund formation documents,” 

says one recent Schulte client. “And 

we’ve had very good experiences with them 

across all the functional areas of corporate law. 

They were extremely good going through a 

difficult bankruptcy with us. They’re a fullservice 

firm.” 

Schulte designed the Tower Capital Funds 

III, IIIA, and IIIB for Babson Capital 

Management in December 2008, with the 

mezzanine and senior debt-focused fund complex 

reaching $1.58 billion total commitments 

upon closing. 

Leading lawyers: Stephanie Breslow, Paul 

Roth, and Marc Weingarten 

Project finance 


Tier 1 



White & Case 

Tier 2 

Chadbourne & Parke 



Tier 3 


Mayer Brown 




Tier 4 

Allen & Overy 

Baker Botts 





Tier 5 


Fulbright & Jaworski 

Jones Day 



Paul Hastings Janofsky & Walker 

Project finance work in the United States is 

one of the few benefactors of an ailing economy. 

Thanks to the Obama administration’s 

concerted push for climate change technologies, 

stimulus packages supplied by the federal 

government have provided tax incentives 

and alternative lending facilities for renewables 

projects in the wind and solar markets. 

Lawyers note that such heavy federal involve- 


978 

United States | Project finance 

ment has subsequently shifted the market’s 

primary financing centre from New York to 

Washington DC. 

Despite its extended timelines, the US 

project finance market has provided consistent 

activity through 2008. “The stimulus bill 

has definitely helped,” says one partner. “It’s 

almost targeted job security for project 

finance firms.” Another comments, “You 

could wait your whole career for project 

finance lawyers in Washington DC to come 

into demand, and thanks to this perfect storm 

of circumstances it’s happened. I wouldn’t 

have predicted that five years ago.” 

The inherent length of project development, 

however, has largely staggered tangible 

results. Instead, the early victory for project 

finance is one of positive market sentiment. 

“Since the stimulus there was really a pronounced 

slowdown until mid-February in 

renewables,” says one partner. “It’s kind of like 

everyone’s been crawling out of a hole in the 

ground to see where the sun’s shining.” 

The US Department of Energy (DOE) 

expanded funding efforts for its Loan 

Guarantee Program and State Energy 

Program, further subsidising renewable energy 

projects nationwide. Congress also 

renewed the Production Tax Credit (PTC) 

system as part of the Emergency Economic 

Stabilization Act of 2008, ensuring tax benefits 

to projects focused on wind and geothermal 

energy. 

Federal subsidies have partially filled the 

void left in the wake of decreased lending by 

financial institutions and private equity sponsors. 

Similarly, the lack of a B-loan market 

and any appetite for syndication has forced 

many deals to access the market through club 

financing. “It’s kind of back to project finance 

101. Investors are looking for plain vanilla, 

things that are easily structured,” says one 

partner. 


A top-tier projects firm for the past five years, 

Latham & Watkins has cultivated a strong 

bench of project finance talent that brings 

equal expertise in lender and sponsor representations. 

“I always have had a lot of respect 

for Latham. They’re a great firm,” comments 

one competitor: “Their lawyers are fabulous.” 

Partners like Jonathan Rod and John Sachs 

are repeatedly named by competitors as leaders 

of the practice, providing the firm with a 

sustained presence in the traditional energy 

market. Competitors also view Latham as 

making inroads into the renewables market, 

ultimately rounding its energy platform to 

match the needs of the market. Evidence of 

this can be seen as recently as March 2009, 

when the firm made the lateral addition of 


Ken Simon to its Washington DC office from 

rival Dickstein Shapiro. 

The network of Latham & Watkins offices 

worldwide gives the firm a foothold in the 

foremost projects markets. This cross-border 

ability is imperative among the leading projects 

practices, and is exemplified in Latham’s 

marquee deals. The construction of the 

Southern Lights pipeline allowed the exportation 

of hydrocarbons from oil refineries in the 

mid-western US into western Canada’s oil 

sands. Jonathan Rod serves as US counsel to 

arranger Royal Bank of Canada (RBC) on 

credit facilities totalling $1.72 billion. 

Domestically, Latham advised Citigroup 

Global Markets and BNP Paribas as the lead 

arrangers for the development of TrAILCo’s 

transmission line project. With $550 million 

secured in financing from the arrangers, the 

transmission line is proposed to run 185 miles 

through Pennsylvania, West Virginia, and 

Virginia, and will distribute 500KV of electricity 

throughout the region. 

Latham made inroads into the renewables 

market with its sponsor representation of 

Noble Environmental Power this year. 

Latham’s John Sachs negotiated financing 

commitments equalling $1.18 billion for the 

development and construction of three wind 

farms throughout the state of New York. 


Kenneth Blohm 

Jeffrey Greenberg 

Jonathan Rod 

John Sachs 


Milbank is credited with being one of the first 

firms to embrace the renewables market and 

capitalise on its exponential growth in recent 

years. This type of focused positioning has 

earned the firm a reputation among competitors 

for quality representations of lenders to 

renewables projects. “Milbank, I think, is an 

excellent firm,” says one competitor. Senior 

talent like Edwin Feo in the firm’s Los Angeles 

office, along with Dan Bartfeld and group 

chairman Eric Silverman acting out of New 

York, are viewed by peers as the foundation 

for much of the practice’s success. 

“I have only good things to say about the 

firm. I’ve worked with Milbank on five or six 

transactions over the last five years or so. I 

think they’re my first and only call for project 

finance,” says a client. “One of my favourites 

over there is Bill Bice. He is more than a project 

finance attorney, he’s a business attorney. 

He comes up with business solutions rather 

than just academic solutions.” 

Despite the erratic financing markets in 

the last year, Milbank found success for lender 

clients AIG, Citibank, HSH Nordbank and 

Royal Bank of Scotland in their connection 

with the Noble wind-farm projects in upstate 

New York. Working through a tax monetisation 

structure, the $741 million in financing 

commitments proved to be the largest provided 

for a wind project to date. Elsewhere in the 

wind sector, Milbank advised the lenders providing 

construction financing for a portfolio 

of wind farms throughout South Dakota, 

Texas and Wisconsin. Edwin Feo and Edward 

Kayukov advised the lending group, which 

included Bayerische Landesbank, HSH 

Nordbank, Norddeutsche Landesbank 

Girozentrale, Banco Espírito Santo and 

Mizuho Bank. 

Milbank’s cross-border abilities in projects 

work also makes the firm a stand-out with 

competitors. With a particular emphasis on 

Latin America, a recent highlight for the projects 

group abroad was its representation of 

the Inter-American Development Bank 

(IDB). Dan Bartfeld advised IDB, securing 

$153 million for Companhia Nacional de 

Açúcar e Álcool’s development and construction 

of sugar and ethanol refineries in Brazil. 

The loan represented the largest multilateral 

financing for a green fuel initiative in Latin 

America this year. 


Dan Bartfeld 

Richard Brach 

Edwin Feo 

Edward Kayukov 

Eric Silverman 

White & Case 

As it does in most of its corporate endeavours, 

White & Case holds an international focus 

within its projects group. Despite decreasing 

oil prices in the last year, the firm maintains a 

heavy presence in Middle Eastern energy projects, 

with competitors noting the firm’s historic 

relationship with the government of 

Saudi Arabia as a particular attribute. While 

some peers view the firm as still needing to fill 

the void left by the departure of energy chair 

Jerry Bloom in 2006, others note the financing 

expertise of lawyers like Arthur Scavone 

and Troy Alexander at the firm. “He’s a very 

practical lawyer,” says one peer of Alexander. 

Two Chilean projects stand out from 

White & Case’s deal list this year, highlighting 

not only the firm’s global reach but its versatility 

within the energy sector as well. The 

firm is representing the lead arrangers for the 

110MW Chacayes hydroelectric facility, 

negotiating the $200 million club financing 

of the deal for clients Calyon, BNP Paribas, 

ING, DnB Nor and SG Americas Securities. 

White & Case also represents the lenders for a 

2010 EDITION

Project finance | United States 

979 

coal-fired power plant in Mejillones, Chile. 

The financing structure of $100 million in A 

loan funds and $293 million in B loans was 

engineered with the intention of the 

International Finance Corporation handling 

the A loan commitments, and Calyon and 

Fortis supporting all B loans. 

Domestically, White & Case has been 

retained as sponsors’ counsel for the development 

and construction of a 350MW gas 

power plant in Bayonne, New Jersey. Advising 

ArcLight Capital and the Hess Corporation, 

the firm has secured financing commitments 

totalling $400 million to be used in implementing 

undersea gas lines and electric transmission 

cables between New York and New 

Jersey in addition to the physical construction 

of the plant itself. 


Troy Alexander 

George Crozer 

Victor DeSantis 

Arthur Scavone 

Chadbourne & Parke 

Chadbourne & Parke’s focus on project 

finance has propelled the firm to a rounded 

reputation not only in the traditional and 

renewable energy markets, but as counsel in 

some of the leading infrastructure deals as 

well. Primarily divided between New York 

and Washington DC, the firm has aggressively 

built a broad US practice that is supported 

by regional offices like Dubai and Mexico 

City for project-intensive jurisdictions. The 

global nature of the practice is fuelled by a 

strong bench of projects lawyers, including 

Todd Alexander, Rohit Chaudhry, Keith 

Martin and Chaim Wachsberger in energy 

matters, and Douglas Fried in infrastructure. 

Fried is specifically singled out by peers for his 

expertise in designing project concession 

structures. 

Perhaps most notable of its successes this 

year was Chadbourne’s involvement in the 

Mundra power project in Gujarat, India. 

Incorporating clean-coal technologies to generate 

4,000MW of electricity to be distributed 

through the northern and western provinces 

of India, the plant’s development and construction 

required $4 billion in financing 

commitments. To do this, Chadbourne was 

selected to wrangle a host of lending agencies, 

state banks and foreign lenders. Its client list 

included the International Finance 

Corporation, the Asian Development Bank, 

Export-Import Bank of Korea, the Korea 

Export Insurance Corporation, and domestic 

and international lending syndicates led by 

the State Bank of India and BNP Paribas, 

respectively. 

In recent years, Chadbourne has aimed to 

become a leading firm in tax equity-driven 

transactions. As a result, the firm saw two 

sponsor representations in the solar and wind 

markets come to a close despite difficult financial 

conditions. Chadbourne’s Ed Zaelke and 

Keith Martin negotiated financing terms for 

Perpetual Energy Systems, eventually securing 

tax-equity and debt commitments that 

enabled the solar projects developer to install 

seven separate installations across California. 

Keith Martin and Neil Golden subsequently 

advised EDP Horizon through negotiations 

for a $265 million tax-equity stake in a portfolio 

of wind farms across the American midwest. 

The portfolio’s investors included 

JPMorgan Capital and subsidiaries of New 

York Life Insurance. 


Todd Alexander 

Rohit Chaudhry 

Douglas Fried 

Keith Martin 

Chaim Wachsberger 


Shearman & Sterling has enjoyed a strong 

showing in the energy sector over the past two 

years, earning significant peer feedback and a 

place in the second tier of the projects rankings. 

Talents from the overall lending practice 

at the firm, like Maura O’Sullivan, complement 

those dedicated strictly to projects work 

and make for a diversity of expertise within 

the group itself. Department co-head Cynthia 

Urda Kassis and partner Patricia Hammes are 

perennial favourites with peers for their creativity 

in financial structuring and overall deal 

execution. 

Representing the arrangers and bookrunners, 

Shearman & Sterling negotiated the 

$740 million financing used to renovate three 

of Topaz Power Group’s Texas plants. Patricia 

Hammes, Howard Steinberg and Robert 

Freedman advised Morgan Stanley, Dexia 

Crédit Local, ING Capital and Natixis from 

the firm’s New York office. 

Shearman has also cultivated a significant 

Latin American projects practice through its 

US offices. For the Angamos project, consisting 

of the development and construction of a 

462MW coal power plant in Mejillones, 

Chile, Shearman’s Gregory Tan advised the 

lead arranger and bookrunners. Shearman 

clients ABN Amro and BNP Paribas were able 

to secure $1 billion in debt commitments 

despite tough credit conditions and closed the 

transaction in October 2008. Elsewhere in 

Chile, Cynthia Urda Kassis and Howard 

Steinberg found roles in the development of 

GNL Quintero’s liquefied natural gas project. 

Executed on the club model, Shearman negotiated 

$1.1 billion in 15-year, senior secured 

financing through the creation of a syndicate 

of nine commercial banks. When complete, 

the joint venture between Quintero and Enap, 

Endesa, Metrogas and the BG Group will 

have constructed facilities for the transmission 

and regasification of liquefied natural gas. 


Patricia Hammes 

Maura O’Sullivan 

Howard Steinberg 

Gregory Tan 

Cynthia Urda Kassis 


Flom 

Skadden’s global structure makes the firm’s 

forays into projects work an easy transition for 

its personnel and resources around the globe, 

no matter the jurisdiction. “They’re a fabulous 

firm,” says one peer. But the project finance 

group at Skadden is still seen as secondary to 

the firm’s global banking and M&A platforms. 

While crossover projects work is common 

because of these inter-related practices, 

peers view the group as being in transition in 

terms of its focuses within the market and 

establishing itself as an independent force 

within the firm. 

Skadden’s representation of NV Energy is 

one such example of the projects group benefiting 

from the firm’s M&A reputation. In 

October 2008, NV was the acquirer of the 

Bighorn Generating Station from energy services 

provider Reliant Energy. The 598MW 

natural gas plant was sold for $510 million, 

with Skadden teams responding from the 

firm’s Washington DC and New York offices. 

Peers see Martin Klepper as the stand-out 

practitioner of the projects group at Skadden. 

In May 2008, Klepper and Paul Kraske represented 

project sponsor Terra-Gen Power 

regarding the tax-equity financing of a series 

of wind farms in the American south-west. 

Consisting of ten sites overall, with an output 

of 282MW, Skadden was able to negotiate 

and secure the necessary financing for the projects 

with Citigroup Capital Markets. The 

final financing amount is confidential. 


Glenn Berger 

Jeffrey Christie 

Martin Klepper 

Paul Kraske 


The installation of a high-occupancy toll lane 

in Washington DC’s Capital Beltway offered 


980 

United States | Restructuring and insolvency 

Orrick Herrington & Sutcliffe its most 

prominent representation of the year. 

Representing sponsors Transurban Group and 

Fluor Corporation, Orrick helped negotiate a 

$1.9 billion financing structure that wrapped 

four series of senior bonds in a letter of credit. 

Richard Chirls, Eileen Heitzler, Keith 

Kriebel and Daniel Mathews served as sponsors’ 

counsel on the transaction. 

The international focus of Sullivan & 

Cromwell has brought the firm several highprofile 

cross-border transactions in Latin 

America in the last year. From New York, 

Sergio Galvis is representing Antofagasta and 

Marubeni as the sponsors of a $1.9 billion 

mine complex in Chile, as well as serving as 

project counsel to Marcobre for the development 

of a $430 million copper mine facility 

in Peru. Marcobre is a joint venture holding 

company established between Chariot 

Resources, Korea Resources Corporation and 

LS-Nikko Copper. 

Expanding beyond its regarded sphere of 

influence in the UK, Allen & Overy has 

developed an impressive Latin American projects 

practice through the firm’s New York 

office. Furthering its ties between the US 

offices and the Latin America practice, the 

head of the firm’s energy and infrastructure 

projects group in New York, Robert 

Kartheiser, was nominated to serve concurrently 

as the managing partner of Allen & 

Overy’s São Paulo office this year. This relationship 

helped Kartheiser advise project 

sponsors Energias do Brasil and MPX Energia 

in securing the $1.6 billion in financing to 

develop a 720MW coal plant. Kartheiser was 

also active as lenders’ counsel, representing the 

lead arrangers and agent for the construction 

of an iron ore mine and surrounding railway 

and port facilities in the Brazilian state of 

Amapá. Clients on the deal included Banco 

ABC Brasil, Banco Itaú and the Brazilian 

development bank, BNDES. 

A significant personnel development for 

the firm was the addition of David Horner, 

who previously held the position of chief 

counsel to the Federal Transit Administration. 

Leading lawyers: Robert Kartheiser and David 

Slade 

Bingham McCutchen landed several 

prominent lender representations for General 

Electric (GE) Energy Financial Services in the 

past year. The firm helped construct the tax 

equity financing related to a portfolio of wind 

projects under development by Noble 

Environmental Power. Following the receipt 

of $840 million in financing from GE, the 

projects began construction in upstate New 

York. Bingham also handled the $490 million 

financing for GE in their investment in the 

McAdoo and Grand Ridge wind projects, in 

Texas and Illinois respectively. The firm is 


advising GE in relation to another wind 

development as well. Bingham is advising GE 

as lender’s counsel for the 165MW Hackberry 

wind farm in Texas, committing $342.6 million 

for the project’s development. 

Leading lawyers: Tara Higgins and Marc 

Reardon 

Cleary Gottlieb Steen & Hamilton has 

translated its well regarded lending practice 

and the firm’s overall global perspective into a 

healthy mix of domestic and cross-border project 

representations. Domestically, Cleary 

advised port facilities operator Ports America 

in its recent joint venture with Terminal 

Investments. Under the name Ports America 

Outer Harbor Terminal, the joint venture 

received the 50-year concession contracts for 

the development and management of new 

port facilities in Oakland, California. The 

firm also represented marine terminal operator 

DP World as the sponsor of new port facilities 

in Callou, Peru. Negotiating with a club 

of eight lenders, Cleary was able to close the 

$300 million lending facility despite deteriorating 

credit conditions in October 2008. 

Leading lawyers: Richard Cooper and Richard 

Lincer 

As head of Morrison & Foerster’s project 

finance group, Michael Graffagna led prominent 

representations for two of the firm’s historic 

Japanese clients. In the energy sector, 

Graffagna advised Toshiba America Nuclear 

Energy through the drafting of its EPC (engineering, 

procurement and construction) contracts 

relating to the construction of a 

2,800MW nuclear facility in Texas. And following 

Sumitomo’s acquisition of Apex Silver 

Mines, Graffagna helped restructure the target’s 

maturing debt holdings as it became the 

owner of the San Cristobal mine complex. 

Leading lawyers: Michael Graffagna 

Paul Hastings Janofsky & Walker joins 

the project finance rankings this year after a 

round of strong peer feedback for the firm’s 

burgeoning sponsor practice. Timothy 

Callahan first advised FutureGen Alliance in 

the development of a $4 billion coal plant, 

and was subsequently picked to represent 

Suzlon Energy for the negotiation of $2 billion 

in financing commitments for a series of 

wind farms throughout the country. Also in 

the wind sector, Paul Hastings is advising 

Acciona on financing aspects of the EcoMet, 

Red Hills and Tatanka wind farms. 

Restructuring and insolvency 


Tier 1 




Tier 2 






Tier 3 

Akin Gump Strauss Hauer & Feld 

Jones Day 

Kramer Levin Naftalis & Frankel 





White & Case 

Tier 4 




Kasowitz Benson Torres & Friedman 

Sidley Austin 

Tier 5 


Morgan Lewis & Bockius 

Paul Hastings Janofsky & Walker 

Stroock & Stroock & Lavan 

WilmerHale 

Tier 6 

Arnold & Porter 

Baker & McKenzie 

Mayer Brown 

McDermott Will & Emery 


The severe recessionary cycle of the past year 

has redefined what is and should be expected 

out of a top restructuring practice. For many 

firms it has been the balance of quality and 

volume, as veterans of the industry struggle to 

find a comparable time in recent history when 

so much has been asked of a law firm in such 

a short period of time. “I’ve lived through 

three other cycles, but I’ve never seen anything 

like this. This is a period no modern 

restructuring lawyer has ever seen,” remarks 

one partner. 

Lehman Brothers stands out as the largest 

bankruptcy filing in history, with an excess of 

$600 billion in debt commitments, but the 

subsequent filings of LyondellBasell and 

General Growth Properties exhibit the true 

2010 EDITION

Restructuring and insolvency | United States 

981 

systemic nature of the economic downturn. 

“Following the form, and following what the 

statute says, and just being a good lawyer isn’t 

enough,” says one partner. Broad corporate 

platforms in lending, regulatory, M&A and 

capital markets are now the standard for firms 

either establishing themselves in the market or 

for competitors redefining their historic market 

territories. 

The lack of financing that forced many 

companies into restructurings or Chapter 11 

filings this year is one of the components leading 

to their need for a more broadly capable 

law firm. Securing debtor-in-possession (DIP) 

financing in this market has proved to be only 

one piece of the greater deleveraging puzzle as 

creditors compare lending risks with the losses 

inherent to a liquidation. 

“The biggest challenge right now is the 

lack of capital,” says one partner. “For a 

restructuring guy, if you don’t have capital, all 

you’re doing is sculpting air.” The international 

reach of so many newly-filed debtors 

also places a demand for firms with offices 

abroad and significant experience in crossborder 

work. 

Because of this sudden need of expertise, 

talented restructuring partners have become a 

commodity. A number of US firms have witnessed 

the departure of practice heads in the 

face of other competitors building inroads 

into the market. But despite this build-up in 

the marketplace and everyone suddenly 

becoming a restructuring expert, many believe 

that the stratification between the most capable 

firms and the rest of the pack is greater 

than it has been at any time before. 


Kirkland & Ellis has become a leader in the 

US restructuring market thanks to the firm’s 

historic devotion to the practice and a group 

of senior practitioners who have become icons 

in their own right. Divided between Chicago, 

New York and Los Angeles, Kirkland’s US 

restructuring group is noted by peers to be 

always in demand. With a mix of mid-market 

filings in addition to the high-profile work 

seen in this year’s representations of companies 

like Chemtura and Charter 

Communications, the group has diversified its 

debtor practice in talent and clientele. The 

dividends paid for developing such a group 

have long been evident in its consistency in 

any market conditions, let alone its demand 

in a recession. 

The names Richard Cieri and Paul Basta 

have become synonymous with the Kirkland 

group, with peers recognising the two as the 

stand-outs of the firm’s overall practice. In 

March 2009, the duo led a Kirkland team in 

the Chapter 11 filing of Charter 

Communications, as the cable television 

provider faced $24 billion in debt, an amount 

that nearly doubled its existing asset values. In 

co-operation with Ray Schrock and Stephen 

Hessler, Cieri and Basta co-ordinated a prepackaged 

bankruptcy plan for the company 

that would eliminate an estimated $8 billion 

from its debt to senior creditors. 

In the week previous to filing for Charter, 

Richard Cieri was retained as debtor’s counsel 

by chemical manufacturer Chemtura in the 

face of a $374 million bond payment. Cieri, 

along with Natasha Labovitz and Craig 

Bruens, secured $400 million in debtor-inpossession 

financing for the chemical maker 

through an agreement with Citibank. 

Chemtura is the most recent bankruptcy 

entrant of a ravaged chemicals sector, with 

rivals LyondellBasell Industries and Tronox 

filing for bankruptcy protections earlier in the 

year. Rick Cieri is also serving as lead debtor’s 

counsel in the Tronox proceedings. 

The restructuring group at Kirkland grew 

by two partners this year. Christopher Marcus 

joined the firm in a lateral move from Weil 

Gotshal & Manges, while James Sprayregen 

returned to the firm after serving as the managing 

director of the investment banking unit 

of Goldman Sachs for the last two years. A 16- 

year restructuring veteran of the firm, 

Sprayregen wasted no time getting back to 

work. Sprayregen and Anup Sathy are acting 

out of the firm’s Chicago office for the subsidiaries 

of General Growth Properties, the 

second largest commercial real-estate developer 

in the US. The case constitutes the largest 

real-estate trust to enter bankruptcy protections, 

with the company looking to restructure 

$27 billion in debt. 

Kirkland didn’t have to travel far to score a 

role in another prominent file this year as it 

was awarded debtor’s counsel to the Sun- 

Times Media Group, parent company to 

Chicago’s own Chicago Sun-Times newspaper. 

Filed in March 2009, Kirkland faces the 

restructuring of $801 million in debt commitments, 

most of which is owed to the company’s 

creditor, the Internal Revenue Service 

(IRS). 


Paul Basta 

Richard Cieri 

Marc Kieselstein 

David Seligman 

James Sprayregen 


Flom 

The intensified demand for seasoned restructuring 

lawyers within the legal and financial 

communities came to bear on Skadden this 

year, as the firm witnessed the departure of 

two of its senior practitioners. The loss of 

restructuring co-head Tim Pohl to financial 

consultancy Lazard in December 2008 proved 

the precursor to DJ Baker’s lateral movement 

to rival firm Latham & Watkins in May 2009. 

Both were considered leaders within the practice 

by peers, often coming recommended as 

leading lawyers for the IFLR1000 in recent 

years. Still, the talents of John Butler, Jay 

Goffman and Gregory Milmoe keep the core 

of Skadden’s restructuring group intact as the 

lack of available financing ensures a deal flow 

at the firm. 

The Chapter 11 filing of ethanol producer 

VeraSun Energy handed Skadden the chance 

to show off its abilities as debtor’s counsel. 

Conceived in one of the most constricted 

financing markets in history, the firm was able 

to create nine debtor-in-possession (DIP) 

facilities and auction off VeraSun manufacturing 

facilities to Valero Renewable Fuels. The 

combined actions brought VeraSun $327 million 

in new DIP funds and $993 million from 

its asset sale. 

Skadden’s Chris Dickerson and Gregg 

Galardi were retained on the cross-border 

bankruptcy of Circuit City in late 2008, a file 

that showcases Skadden’s ability not only to 

line up significant debtor financing, but also 

to co-ordinate the sale of the company’s 

Canadian subsidiary. After securing $1.1 billion 

in DIP financing for the consumer electronics 

retailer, the company was ultimately 

liquidated after it failed to sell in auction. The 

recently-acquired Canadian subsidiary of 

Circuit City, InterTan, was also sold for an 

undisclosed amount. 

Another cross-border file for Skadden 

came in its work for commercial real-estate 

operator Centro Properties. Based in Australia 

and the US, Centro faced an estimated $20 

billion in debt related to acquisitions made 

before the full onset of the recession. Jay 

Goffman led the Skadden team on the 

restructuring effort that would keep Centro 

out of Chapter 11 proceedings, negotiating 

for the extension of $6 billion in maturing 

debt and working with lenders to create nearly 

$400 million in new facilities. 

Other prominent files for Skadden include 

its representation of the private equity shop 

Vulcan Capital as the lead shareholder for 

Charter Communications’ Chapter 11 proceedings 

and its advising of Access Industries, 

the parent company to LyondellBasell 

Industries. 


John Butler 

Jay Goffman 

J Gregory Milmoe 


982 



The return of Harvey Miller to Weil Gotshal 

& Manges was perhaps the single most talkedabout 

personnel move in the restructuring 

community this year. A 33-year veteran of the 

firm, Miller left in 2002 to join investment 

bank Greenhill & Co. His homecoming has 

returned many peers to the sentiment that 

Weil is and will be for the foreseeable future 

the team to beat in the restructuring market. 

“Harvey Miller is the dean of this community,” 

says one competitor. 

Others laud the overall practice for its ability 

not only to be retained on files like 

American International Group (AIG), 

Lehman Brothers and General Growth 

Properties, but to act on them concurrently. 

“Weil has expanded the debtor cases it handles 

extensively,” notes a rival. Another summates 

Weil’s standing simply by saying: “They 

have the best bankruptcy practice in the US, 

period.” 

The spectacular collapse of Lehman 

Brothers roiled worldwide financial markets as 

one of the infamously dubbed too-big-to-fail 

companies declared its Chapter 11 filing in 

September 2008. Facing $639 billion in debt 

and with potential merger partners unable to 

secure government guarantees on any proposed 

acquisition, the investment bank was 

forced into what is the largest bankruptcy filing 

in US history. Weil was retained as lead 

debtor counsel the week previous to its filing, 

mobilising overnight an estimated 490 attorneys 

firm-wide – to be led by a New York 

team headed by Harvey Miller. 

In addition to Lehman’s Chapter 11 proceedings, 

Weil has overseen the dismantling of 

the investment bank as well. These transactions 

include the $1.35 billion sale of 

Lehman’s investment banking division and 

New York real-estate holding to rival Barclays, 

the spin-off of Lehman Brothers Venture 

Partners into Tenaya Capital, and the sale of 

Lehman’s stake in the hedge fund R3 Capital 

Partners to rival BlackRock. 

While Lehman is the largest filing being 

handled at Weil, the firm is also servicing a 

host of other significant US debtor cases as 

well. Another too-big-to-fail company has 

retained the firm, with insurer AIG choosing 

Weil as the lead counsel in relation to its estimated 

$440 billion in credit default swap 

exposures since the beginning of the financial 

crisis. General Growth Properties, the secondlargest 

operator and owner of commercial 

real-estate holdings in the US, has similarly 

hired Weil in relation to its Chapter 11 filing. 

General Growth faces approximately $27 billion 

in debt due to its large-scale holdings of 

short-term mortgages. 

Why these companies come to Weil can be 

seen in the result the firm achieved in advising 


Vertis Communications in mid-2008. Vertis 

and commercial printing rival American 

Color Graphics (ACG) were both entered 

into the first dual, pre-packaged bankruptcy 

filing in order to organise the senior creditors 

of both companies and allow them to emerge 

from bankruptcy as one entity. Weil’s Gary 

Holtzer and Stephen Youngman negotiated 

the debt-for-equity swap for Vertis that ultimately 

allowed the merger to proceed. The 

new company emerged from bankruptcy protection 

in August 2008, only 42 days after filing 

the original bankruptcy and merger plans 

to the Wilmington, Delaware court. 


Lori Fife 

Gary Holtzer 

Marcia Goldstein 

Richard Krasnow 

Harvey Miller 

Shai Waisman 


No stranger to growing a specific practice area 

or concentration aggressively, Cadwalader has 

made significant gains in the past two years to 

make the firm a competitor on some of the 

most technical restructurings in the market 

today. This includes bringing in four partners 

from rival Weil Gothsal & Manges in 2007, 

one of whom, Deryck Palmer, now co-heads 

the firm’s restructuring group. The other half 

of the group’s management, John Rapisardi, 

brings a comparable level of expertise to the 

practice, being highlighted by peers as one of 

the truly influential voices on any restructuring 

mandate secured by the firm. “They’re in 

the top quartile of the firms that we deal 

with,” notes one client. 

This type of fast-paced department building 

can go the other way as well. January 2009 

proved a difficult month for the Cadwalader 

restructuring team, with former co-head of 

the practice Bruce Zirinsky and partners John 

Bae and Nathan Haynes departing for 

Greenberg Traurig. In the same month, 

Cadwalader lost another two partners to rival 

Paul Hastings Janofsky & Walker. The firm 

has attempted to counteract this loss of personnel 

with more additions of its own – 

specifically Jessica Fink and Sharon 

Richardson from Milbank Tweed Hadley & 

McCloy and Weil Gotshal & Manges, respectively. 

Both were brought in at the level of 

senior counsel. 

Despite all these personnel moves, the core 

level of talent at Cadwalader is very high. One 

clear indication of this is the preference held 

by the US Department of the Treasury to hire 

the firm to consult in connection with the 

potential bankruptcies of American automakers. 

Deryck Palmer and John Rapisardi were 

brought into the discussion over the potential 

restructuring scenarios that existed for 

Chrysler and General Motors following the 

government’s combined $17.4 billion in distressed 

financing for the automakers. 

“I tell you, they’ve been fantastic. I can’t 

say enough good things about them. Good, 

smart lawyers,” says one restructuring client. 

“But that said, what I like most about them is 

they have a very good business perspective and 

advise us accordingly with a legal hat and a 

business hat, and that’s what I like about them 

most. They know when to be tough and hold 

firm, and when to work with folks in good 

spirit in terms of getting a deal done.” 

Along with Skadden Arps Slate Meagher 

& Flom, Cadwalader was the go-to option for 

Lyondell Chemical in its bankruptcy filing in 

January 2009. Facing $19 billion in debt and 

only $27 billion in assets, the chemical manufacturer 

entered bankruptcy protection following 

a missed debt payment and prolonged 

economic difficulty for the chemical sector as 

a whole. Deryck Palmer, John Rapisardi, 

George Davis and Mark Ellenberg are advising 

on the file and have secured a $1.52 billion 

debtor-in-possession (DIP) financing 

facility through Citibank to keep the company 

operating through its reorganisation. 

According to competitors, representations 

for noteholders are a particular strength for 

Cadwalader. The most recent example of this 

is the firm’s representation of Citigroup, 

which is estimated to hold $135 billion in 

bond debt as the indenture trustee of the 

failed investment bank. 


George Davis 

Mark Ellenberg 

Deryck Palmer 

John Rapisardi 

Andrew Troop 


The restructuring team at Davis Polk & 

Wardwell is aided by one of the most highly 

regarded regulatory and lending groups, also 

at the firm. Peers recognise the co-heads of the 

restructuring practice Donald Bernstein and 

Marshall Huebner as effective practitioners 

who make the firm competitive in the market 

despite its concentration in New York. In an 

effort to expand its reputation for high-quality 

talent, the firm brought in Michael Crames 

as a senior counsel this year, hiring him away 

from his position as a senior adviser at investment 

bank Peter J Solomon. 

Its smaller size is also surprising in light of 

what Davis Polk’s restructuring group has 

been able to achieve in the past year. 

2010 EDITION


983 

Following the collapse of the structured 

finance market, a group of 23 financial institutions 

hired Davis Polk to restructure the 

estimated $160 billion owed through credit 

default swaps and other obligations of monocline 

insurer Syncora. The team, led by 

Donald Bernstein, was able to restructure the 

outstanding debt into cash payments of $1.2 

billion for their clients along with $625 million 

in a new notes offering and shared 40% 

ownership of Syncora. 

Another prominent file for Davis Polk this 

year came in its recent mandate from the Ford 

Motor Company. Facing $25.8 billion of debt, 

Davis Polk designed a restructuring plan that 

eliminated roughly 40% of Ford’s commitments 

through exchange and tender offers for 

the company’s mature outstanding bonds and 

some of its senior lending facilities. The plan 

removed $9.9 billion from Ford’s debt burden 

and helped keep the automaker from suffering 

a fate similar to rivals Chrysler and General 

Motors, who were forced into governmentsponsored 

bankruptcies in early 2009. 


Donald Bernstein 

Marshall Huebner 


Milbank Tweed Hadley & McCloy has made 

a name for itself in the restructuring market 

serving large creditors’ committees and noteholder 

groups in connection with premier filings 

like Lehman Brothers and Nortel 

Networks. The firm maintains a lower profile 

than many of its competitors, though it has 

consistently cultivated a practice that has 

attracted new partners throughout the year. 

Paul Aronzon joined Milbank in 

September 2008 as practice co-head, leaving 

his former position as the head of restructuring 

advisory services and co-manager of 

investment banking at Imperial Capital, while 

Mark Shinderman made a lateral move to the 

firm from Munger Tolles & Olson in March 

2009. Both additions hope to offset what 

competitors see as a significant loss in the 

departure of Luc Despins to rival Paul 

Hastings Janofsky & Walker in late 2008. 

Despite the recent fluctuation of personnel, 

clients still agree that the firm’s creativity 

is what separates it from most of its competitors. 

“I’ve used them in a restructuring, an 

out-of-court restructuring, and they came up 

with solutions that other law firms that were 

on the other sides of the table did not and 

could not come up with,” says a client. 

Restructuring co-head Dennis Dunne is 

recommended by competitors for his longstanding 

leadership of the group. Dunne is 

leading the Milbank team hired to advise a 

noteholders committee in connection with 

the cross-border bankruptcy of the telecoms 

outfit Nortel. In the face of a $107 million 

debt payment and an overall $4 billion in 

bond debt, Nortel filed for Chapter 11 in the 

US and CCAA protection for its Canadian 

operations. 

Milbank is lead counsel for the official 

committee of unsecured creditors in connection 

with the Chapter 11 proceedings for 

Lehman Brothers. Lehman is estimated to 

owe the committee members a combined 

$157 billion, with Citibank and Bank of New 

York Mellon constituting the largest bondholders 

of the group overall. The firm is 

assuming a similar role in the bankruptcy of 

Lyondell Chemical. Advising nearly half of 

the chemical manufacturer’s senior secured 

creditors, Milbank is presently negotiating 

debts in excess of $12 billion for the group. 

In debtor work, Milbank is representing 

Station Casinos in its recent Chapter 11 filing. 

Following months of trying to arrange a prepackaged 

bankruptcy scenario with creditors, 

the casino developer and operator was ultimately 

forced into bankruptcy protections 

when no agreement could be made on its estimated 

$5 billion in debt commitments. 


Paul Aronzon 

Dennis Dunne 


The representation of noteholder and creditor 

committees has occupied the bankruptcy 

group at Akin Gump Strauss Hauer & Feld 

in the past year. Run primarily out of the 

firm’s New York office, Akin Gump’s restructuring 

practice has been retained by financing 

groups connected to two of the largest bankruptcies 

to be filed out of the financial sector 

this year in Lehman Brothers and Washington 

Mutual. The firm is representing an ad-hoc 

group of noteholders in Lehman Brothers 

with an estimated $12 billion in debt invested 

in the failed investment bank. Meanwhile, 

Fred Hodara, head of Akin Gump’s restructuring 

group, is leading representation of the 

official committee of unsecured creditors 

through Washington Mutual’s Chapter 11 

proceedings. Both institutional lenders filed 

for bankruptcy protections in September 

2008 following losses tied to subprime mortgage 

investments. 

Again acting for the unsecured creditor 

committee, Akin Gump was hired as counsel 

for Florida homebuilder Tousa in January 

2009. The company filed for Chapter 11 as 

the US homebuilding market quickly collapsed 

due to subprime mortgage exposures, 

leaving Tousa with $1.8 billion in debt and 

only $2.3 billion in estimated assets. 

Leading lawyers: Fred Hodara 

Losses in the retail sector brought 

Bingham McCutchen to serve as counsel to 

GE Capital during the bankruptcy proceedings 

for housewares retailer Linens ‘n Things. 

GE Capital was the financier providing the 

retailer with DIP financing in the amount of 

$700 million. Linens ‘n Things faced $1.42 

billion in debt as it entered bankruptcy protection 

in May 2008. 

This action for creditors and noteholders 

in connection with Chapter 11 filings is nothing 

new for Bingham. The firm is regarded by 

peers to be frequently in the role of advising 

creditor and noteholder committees, as it did 

this year for the restructurings of three failed 

Icelandic banks. The collapse of Iceland’s 

Glitnir, Kaupthing and Landsbanki banks 

under the weight of foreign debt during the 

financial crisis was part of a larger financial 

collapse of the country overall. Shortly thereafter, 

Bingham’s Timothy DeSieno landed the 

role of advising the worldwide bondholder 

group during the restructuring of the banks. 

Backed by strong tax and litigation groups 

also at the firm, Fried Frank Harris Shriver & 

Jacobson has carved out a small but respected 

restructuring practice through its expertise in 

private equity and capital markets financing. 

Fried Frank’s Bonnie Steingart was selected as 

lead counsel for Aleris International’s recent 

Chapter 11 filing. Still under bankruptcy protection 

to date, Steingart was able to secure $1 

billion in DIP financing designed to supply 

the aluminium products manufacturer with 

working capital throughout the proceedings. 

In debtor and creditor work, Fried Frank 

acted as counsel to the official committee of 

equity security holders for the lengthy restructuring 

efforts of auto-parts maker Delphi. 

Exemplifying the difficulties of downstream 

manufacturers in the auto industry, Delphi 

faces an estimated $27 billion in debt against 

some only $33 billion in revenues and assets. 

Another highlight for the firm is its involvement 

in the Chapter 11 restructuring of distressed 

lender Washington Mutual. 

Department head Brad Eric Scheler and partner 

Brian Pfeiffer are representing Appaloosa 

Management and Centerbridge Partners, two 

significant noteholders for the bank. 

Leading lawyers: Brad Eric Scheler 

Gibson Dunn & Crutcher has made significant 

strides in bulking up its restructuring 

group this year, hiring three partners, one 

counsel and three associates away from rival 

Kramer Levin Naftalis & Frankel in the latter 

half of 2008. In addition to partners Matthew 

Williams and Eric Wise, David Feldman 

moved over to Gibson Dunn to become the 

co-chair of the firm’s restructuring platform 


984 


with Craig Millet and Michael Rosenthal. 

Feldman wasted no time and quickly took up 

the representation of Farallon Capital 

Management, advising the private equity 

group as part of the debt-for-equity swap with 

debtor national restaurant franchise operator 

RM Restaurant Holding. 

Latham & Watkins has consistently been 

trying to grow its reputation in the restructuring 

market to match other noted corporate 

strengths in the capital markets and in leveraged 

buyouts related to its private equity 

work. The momentum built by this renewed 

focus on restructuring matters received a significant 

and perhaps game-changing shift in 

the arrival of DJ Baker. Formerly of rival firm 

Skadden Arps Slate Meagher & Flom, Baker 

brings a heft of reputation and expertise to the 

practice and gives Latham a high-profile name 

to place beside its managing co-chairs of the 

department, David Heller and Mitchell 

Seider. Baker’s arrival also offers Latham’s 

restructuring group something it has long 

been seeking – a significant expansion of its 

debtor practice. 

Latham has been a favourite for Credit 

Suisse recently, being retained by the investment 

bank for its role as the senior secured 

lender in two large Chapter 11 filings. Seider 

led the Latham team for the negotiation and 

administration of $1 billion in DIP financing 

to US restaurant chain operator Buffets, and 

Mark Broude advised the bank on its holdings 

of $1.4 billion in the bankrupt Tropicana 

Resort & Casino. 

In the recent Chapter 11 filing of commercial 

real-estate operator General Growth 

Properties, the firm has landed the representation 

of Deutsche Bank. At present, Deutsche 

has debt holdings with General Growth 

through its lending status to the real-estate 

developer in excess of $2.5 billion. Similar 

cross-border work has secured Latham the 

role of advising Royal Bank of Canada (RBC) 

as the first and second lien holder for the 

Maher Terminals restructuring. RBC’s holding 

in the New York container terminal project 

is estimated at $1.1 billion. 

Leading lawyers: DJ Baker, David Heller and 

Mitchell Seider 

Despite the loss of two partners in Raniero 

D’Aversa and Kenneth Noble to rivals Orrick 

Herrington & Sutcliffe and Katten Muchin 

Rosenman respectively, Mayer Brown is still a 

favourite with clients for stand-out practitioners 

J Robert Stoll and Douglas Wisner. “I’ve 

worked with Bob Stoll and Doug Wisner at 

Mayer Brown, and I think the world of those 

guys,” says a client. 

Mayer Brown served as creditors’ counsel 

in the bankruptcies of media conglomerate 

Tribune Company and Lyondell Chemical. 

Aided by a respected structured finance group, 


the firm advised Barclays in the creation of 

$350 million in post-petition financing that 

would allow a trade receivables facility and a 

$50 million letter of credit to keep the company 

with operating capital. In the Chapter 

11 filing of Lyondell Chemical, Mayer Brown 

is advising Merrill Lynch Capital as the 

administrator of the $8 billion the chemical 

manufacturer received as part of a second lien 

financing. 

Leading lawyers: J Robert Stoll 

The greatest development for the restructuring 

group at McDermott Will & Emery 

was its addition of five partners this year. 

Bringing in four laterals from rival DLA Piper 

and one from Sidley Austin, McDermott is 

steadily building up its bench in an attempt to 

broaden its focus on the overall market. 

Restructuring co-head Geoffrey Raicht is representing 

the Alfred Mann Living Trust, acting 

as the financier of DIP facilities for the 

recently bankrupted Eclipse Aviation. Raicht’s 

restructuring counterpart, William Smith, has 

been retained as counsel to Ambac Assurance, 

counselling the insurer on its estimated $2.9 

billion in commitments through student loan 

guarantor Education Resources Institute. 

Morgan Lewis & Bockius is a steady presence 

in the middle market, displaying an even 

balance between its creditor and debtor client 

bases. Co-chairs of the restructuring group, 

Howard Beltzer and Richard Toder, have 

assumed roles in retail chain bankruptcies like 

Mervyns and Linens ‘n Things as well as creditor 

representations for JPMorgan Chase and 

Wachovia. Beltzer helped secure Linen ‘n 

Things $700 million in DIP financing 

through its Chapter 11 proceedings, meanwhile 

leading the Chapter 11 negotiations and 

eventual liquidation of Mervyns through 

2008. 

JPMorgan hired Richard Toder to negotiate 

and design the $1.5 billion syndicated 

credit facility it offered troubled automaker 

General Motors. Toder was similarly retained 

by Wachovia to instruct on its role as the 

agent of a lending syndicate to SemGroup 

Energy Partners. Toder negotiated a $600 million 

secured credit facility with the distressed 

crude oil developer. 

In anticipation of the restructuring wave 

to come, Orrick Herrington & Sutcliffe hired 

Raniero D’Aversa and Mark Fennessy as lateral 

partners from competitors Mayer Brown 

and Hunton & Williams, respectively. This 

added bench strength helped the firm advise 

ABN Amro in its involvement with the special 

investment vehicle (SIV) Ritchie Risk-Linked 

Strategies. ABN Amro provided $500 million 

in pre-petition and DIP financing for its eventual 

takeover of a fund consisting of life insurance 

policies. Orrick is also advising the official 

committee of unsecured creditors for the 

bankruptcy of Stone & Webster Engineering 

Corporation and, upon its liquidation, 

assumed control over matters for the company’s 

liquidating trust. 

Paul Hastings Janofsky & Walker joins 

the restructuring rankings after peer feedback 

saying the firm is aggressively growing its 

restructuring practice and has the quality to 

compete. The recruitment of Luc Despins 

from rival Milbank Tweed Hadley & McCloy 

is seen by competitors as a significant addition. 

Paul Hastings has also been recruiting 

heavily to bulk up its London restructuring 

team, hiring seven partners from Cadwalader 

Wickersham & Taft’s London office in 

January 2009. Luc Despins is now representing 

the unsecured creditors for flash memory 

developer Spansion, while Richard Chesley 

advises the independent directors of the 

Tropicana Resort & Casino in their ongoing 

Chapter 11 filing. 

Shearman & Sterling’s Douglas Bartner is 

a favourite among peers for his insights into 

restructuring solutions for clients. As head of 

the firm’s restructuring group, Bartner has 

raised the Shearman reputation as a creditor 

counsel, a reputation that is also enhanced by 

the established lending and regulatory platforms 

at the firm. 

The troubled US chemicals sector provided 

Shearman the opportunity to once again 

represent the firm’s historic client, Citibank. 

Citibank Global Markets retained the firm to 

help negotiate and structure DIP financing 

for the Chemtura Corporation, providing 

$100 million in cash and roll-ups of existing 

credit facilities. Shearman was similarly 

retained as counsel on the cross-border bankruptcy 

financing for AbitibiBowater. 

Representing the Toronto lender Fairfax 

Financial Holdings, Douglas Bartner crafted 

$206 million in DIP financing in the form of 

a super-priority credit facility for the ailing 

forestry products manufacturer. 

Leading lawyers: Douglas Bartner 

Sidley Austin is a new addition to the 

restructuring rankings this year, following 

strong peer and client feedback that depict the 

firm as having solid expertise in its Chicago 

group leaders, James Conlan and Larry 

Nyhan. “I keep going back to Sidley. They’re 

always my first call,” says a client. “They’re 

very good at delving into the process and the 

timing of issues.” The highlight for the firm’s 

restructuring group this year came in its being 

selected as debtor’s counsel for the Tribune 

Company, parent company to newspapers like 

the Chicago Tribune and the Los Angeles Times. 

Tribune is facing nearly $14 billion in debt 

commitments, almost double its valued assets. 

Leading lawyers: James Conlan and Larry 

Nyhan 

2010 EDITION


985 

Simpson Thacher & Bartlett’s ties to 

financial institutions through its respected 

practices in lending facilities and financial regulatory 

advice have similarly accelerated the 

client base of its restructuring group. The 

group added one partner in Sandeep Qusba, a 

lateral hire from White & Case, in a move 

that deepens the firm’s already broad expertise 

in corporate financing. 

Simpson Thacher’s Mark Thompson was 

selected as counsel with Nick Shaw from the 

firm’s capital markets group to conduct private 

debt exchanges involved with the restructuring 

of NXP Semiconductors – transactions 

that ultimately reduced NXP’s debt by $465 

million. But perhaps the firm’s most notable 

restructuring appointment this year was serving 

as creditor’s counsel to UBS Securities for 

its involvement with Lyondell Chemical. In 

order to maintain operations through its 

Chapter 11 filing, the distressed chemical 

manufacturer was granted $6.5 billion in DIP 

facilities. Consisting of $3.25 billion in term 

loans and an equal roll-up of existing loan 

facilities, Simpson constructed what is the 

largest combined DIP financing to date. 

The departures of staff and personnel 

through what was a tough year for White & 

Case didn’t stop the firm from advising in 

some of the larger restructuring files in the 

market. Despite the loss of partners Sandeep 

Qusba to Simpson Thacher & Bartlett and 

Andrew DeNatale to Stroock & Stroock & 

Lavan, the restructuring group at White & 

Case found roles as creditors’ and noteholders’ 

counsel on files like the Washington Mutual 

bankruptcy and the restructuring of automaker 

Chrysler. Thomas Lauria, global chair of 

the firm’s restructuring platform, was retained 

as lead counsel in both instances, representing 

the noteholders’ group for Washington 

Mutual and an ad-hoc group of lenders for 

Chrysler. Washington Mutual noteholders are 

owed an estimated $2.6 billion in outstanding 

debt commitments from the distressed lender, 

while the Chrysler CarCo Lenders Group is 

contending for investments made as part of 

the automaker’s $7 billion first-lien secured 

debt. 

Leading lawyers: Thomas Lauria

United States - IFLR1000

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