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Freshfields heads 2009 deal rankings as Euro M&A manages revival in Q4- Legalweek

January 14, 2010 By Leave a Comment

Hopes rise of deal revival but M&A stats show corporate activity in 2009 fell to six-year low

Freshfields Bruckhaus Deringer has topped Mergermarket's European deal rankings for 2009 – a year that saw activity levels fall back to 2003 levels.

The magic circle firm headed the European rankings by value and volume after advising on 169 deals worth $274.6bn (£170bn). The tally, which included roles on five of the 10 largest European deals of 2009, saw the firm narrowly knock last year’s leader – Linklaters – into second place by both value and volume. Both firms advised on the largest European deal of the year – HM Treasury’s $41.9bn (£26bn) stake in Royal Bank of Scotland.

Mergermarket’s research shows a marked uptake in activity in the fourth quarter of 2009 with some 916 European deals worth $203.3bn (£126bn) compared with 830 deals worth $77.3bn (£48bn) in Q3.

Ed Braham (pictured), global head of corporate at Freshfields, commented: “We saw a stronger flow of new deals at the end of last year and my instinct is to be optimistic for the first half of 2010. However, the deals could take some time to reach signing and there is the risk of a market shock.”

Despite the increase in activity seen in the last quarter of 2009, looking at the year as a whole shows a gloomy picture. European M&A activity stood at 3,524 deals worth $473.7bn (£293bn) in 2009, down from 5,456 deals worth $1,048.1bn (£649bn) in 2008. The figures are broadly similar to 2003 when there were 3,303 deals worth $487.4bn (£302bn).

Linklaters corporate head David Barnes said: “I think 2009 will prove to be the low point of M&A; it should pick up gradually from here on in.” Tim Emmerson, Sullivan & Cromwell London M&A partner, added: “At an emotional level people who have been sitting on their hands for a long time realise that they need to get out there and start doing deals and using the pools of acquisition finance which are available from the better capitalised banks.”

Asia-Pacific stood out as the strongest performer of the year, with activity matching 2007 levels. In 2009 the region saw 2,208 deals totalling $419.3bn (£260bn).

via Freshfields heads 2009 deal rankings as Euro M&A manages revival in Q4- Legalweek.

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Criminal Antitrust Fines Skyrocketing, Says Gibson Dunn Report

January 6, 2010 By Leave a Comment

Antitrust enforcers at the Department of Justice collected a whopping $1 billion in criminal fines in fiscal year 2009, an increase of 48 percent over 2008.

But don’t just chalk it up to the Obama administration’s get-tough stance on antitrust. According to an analysis released this week by Gibson, Dunn & Crutcher, the majority of the fines came in the first half of the fiscal year — well before antitrust chief Christine Varney was confirmed in April 2009.

It wasn't just U.S. antitrust enforcers who were busy. A total of $3.6 billion in fines were levied by other antitrust regimes in 2009, according to the report, which was prepared for firm clients.

“Everyone expects aggressive criminal enforcement will continue,” said Gibson Dunn partner David Burns, who wrote the report.

At the end of FY 2009, he said, the Antitrust Division reported that 144 grand jury investigations were pending — the largest number since 1992.

“This tremendous line of astronomical fines is likely to continue,” Burns said. “There’s the potential for a record-breaking year in 2010.”

via Law.com – Criminal Antitrust Fines Skyrocketing, Says Gibson Dunn Report.

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Employment Lawyer Advises: When in Rome, Do as the Americans Do

January 6, 2010 By Leave a Comment

When in Rome, do as the Romans, unless, of course, you’re an employer regulating workplace behavior. Companies with global offices should consider adopting a uniform code of conduct for all employees. That’s what Stephen Hirschfeld, CEO of the Employment Law Alliance and a partner at San Francisco’s Curiale Hirschfeld Kraemer, has been preaching to companies over the past year.

Hirschfeld, who has represented global companies for nearly three decades, said over the past year he’s heard a lot of questions from companies with an international presence about whether certain behavior by overseas employees should be tolerated because it’s acceptable under local customs or laws. For example, should an employer allow managers in Saudi Arabia to deny promotions to female employees? Or look the other way when its Chinese facility refuses to hire the best qualified engineer because he is gay?

If it’s unethical, discriminatory or retaliatory in your eyes, don’t do it, advises Hirschfeld. The following Q&A has been edited for length and clarity.

via Employment Lawyer Advises: When in Rome, Do as the Americans Do.

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Retrospective: Ten Key Evidence Issues In 2009 | Federal Evidence Review

January 5, 2010 By Leave a Comment

As the year 2009 concluded, we take this opportunity to review some key evidence issues that were considered during the past year. While it is challenging to offer a definitive list, we offer the following ten key evidence issues from the past year, which are not ranked in any particular order. Some of these issues involved the attorney-client privilege and whether interlocutory appeals may be taken from adverse rulings; the Confrontation Clause; the ability of a court to consider a constitutional challenge concerning jury deliberations; electronic and Internet evidence; cases construing FRE 502, involving attorney-client privilege issues, the most recent amendment to the rules; corporate prosecution issues; and more.

Federal Evidence Reviews Ten Key 2009 Evidence Issues

  1. Supreme Court: Mohawk Industries Attorney-Client Privilege Interlocutory Appeal Decision
  2. Supreme Court: Melendez-Diaz Confrontation Clause Decision
  3. Reviewing Jury Deliberations: The Constitution vs. FRE 606b
  4. Role Of The Court In Reviewing State Secret Privilege Claims
  5. Compelling Production Of Corporate Records Provided To The Government
  6. New Rule: FRE 502 Attorney-Client Privilege And Work-Product Doctrine
  7. Applying Federal Law On Spoliation Issues
  8. Electronic And Internet Evidence Issues
  9. Limits To Non-Hearsay Background And Context Doctrine
  10. Standard For Access To Grand Jury Testimony

[continued] Retrospective: Ten Key Evidence Issues In 2009 | Federal Evidence Review.

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Memos to United States Attorneys: Establishing Guidance for Prosecutors Regarding Criminal Discovery « USDOJ: Justice Blog

January 4, 2010 By Leave a Comment

Last year, the Department of Justice convened a working group to explore the Department’s policies, practices, and training related to criminal case management and discovery. The group is made up of senior prosecutors from throughout the Department and from United States’ Attorney Offices, law enforcement representatives, and information technology professionals.

Today, in response to recommendations from this group, the Deputy Attorney General issued three memoranda regarding criminal discovery practices including a memorandum to all prosecutors containing guidance regarding criminal discovery that prosecutors should follow to help assure that they meet discovery obligations in future cases.

[continued] Memos to United States Attorneys: Establishing Guidance for Prosecutors Regarding Criminal Discovery « USDOJ: Justice Blog.

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The American Lawyers Litigation Department of the Year

January 4, 2010 By Leave a Comment

The wait is finally over, folks. Bragging rights, the green jacket, and other props for Litigation Department of the Year belong to Gibson, Dunn & Crutcher. After months of vetting dozens of contenders, judges at The American Lawyer were impressed by Gibson Dunns record of turning bleak situations into positive results. Among the highlights were helping Wal-Mart and United Parcel Services skirt potential disaster in some ugly employment class actions; exposing a massive fraud committed by Nicaraguan plaintiffs and their lawyers who had sued Dole Food Company; extinguishing a $277 million securities class action verdict against the Apollo Group; and winning a Supreme Court case over judicial campaign contributions for a West Virginia mining company.

David Bario, who analyzes the firms success in the January 2010 issue of The American Lawyer, put it this way: “Time and again in 2008-09, blue-chip clients in desperate straits have turned to Gibson, Dunn lawyers to get them out of trouble at every stage, from subpoena to summary judgment to U.S. Supreme Court final appeal.”

via The American Lawyers Litigation Department of the Year.

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TSA drops subpoena for blogger’s information

January 1, 2010 By Leave a Comment

31/12/2009 – SD-1544-09-06 : This Comes To An End

Shortly before 7:00pm this evening I received a phone call that would end this year and allow me to have a Happy New Year. My call this evening came from John Drennan, the Transportation Security Administration’s Deputy Chief Counsel for Enforcement informing me that the TSA would no longer be pursing me for information regarding the identity of the person who sent me Security Directive SD-1544-09-06.

The subpoena that Chris Elliot was fighting was also dropped in its entirety by the TSA.

Hopefully this is the end of this situation, the agency will replace the MacBook they damaged, and we can all move forward.

I hope 2010 is the year the TSA can find a permanent Administrator the agency can find its defined focus to become a shining star within the Department of Homeland Security.

Happy Flying!

via Flying With Fish » SD-1544-09-06 : This Comes To An End.

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SEC Settlements Declined in 2009 For Second Straight Year

December 9, 2009 By Leave a Comment

The number of Securities and Exchange Commission settlements declined for the second consecutive fiscal year in 2009, with 626 defendants, compared to 673 in FY 2008, according to the global consultng firm, NERA Economic Consulting, in its fiscal year-end SEC Settlements Trends report.

The 2009 fiscal year-end figures represent the lowest annual number of settling defendants since the Sarbanes-Oxley Act was implemented in 2002.

Monetary payments were a component of 58.6% of company settlements and 58.9% of individual settlements for FY 2009. For companies, the average settlement more than doubled to $10.7 million, compared to $4.7 million in the previous year. The median company settlement was $1.0 million, the same as in FY 2008.

The divergence between doubling average company settlements and unchanged median settlements is explained by three settlements over $100 million: Siemens' $350 million alleged Foreign Corrupt Practices Act (FCPA) settlement, UBS's $200 million settlement for allegedly facilitating customer tax evasion, and the $177 million alleged FCPA violation settlement for Halliburton and its subsidiary KBR.

[continued] SEC Settlements Declined in 2009 For Second Straight Year.

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Can Tech Shows Boost a Firm’s Bottom Line?

December 9, 2009 By Leave a Comment

You can't help but wonder about an Am Law 200 firm that significantly cut or eliminated IT and litigation support staff attendance at this year's LegalTech and ILTA '09 conferences. The reasons vary, from “it wouldn't look right” to “we just have to cut expenses everywhere.”

Good thing these shows weren't held in Las Vegas. No firm would have sent its IT folks there for a week of blackjack and “Texas Hold-'em” parties. Not a chance. It just wouldn't send the right message; what with the layoffs, frozen salaries, and the elimination of bonuses. But these shows weren't in Vegas, and despite the beliefs of some (dare I say, many?), they aren't paid vacations for the technology staff.

Last year, law firms sent 1,320 people to the ILTA conference in Dallas. Of those, 735 came from firms with more than 250 attorneys. A year later, at a site near Washington, D.C., that for millions is a train ride away, law firm attendance dropped 47 percent, to 704 full-conference attendees. Firms with more than 250 attorneys sent only 376 folks, a drop of nearly 50 percent. These numbers don't include the attendees from corporate law departments, law schools, or the government, with ILTA's total attendance down 38 percent from the prior year.  And ILTA wasn't alone — almost all conferences in the legal arena suffered a drop in attendance due to the economy. LegalTech's double-digit growth over the last few years was arrested this year. According to Henry Payne Dicker, vice president of ALM Events, attendance for the New York show was down slightly from previous years.

We don't have data on what percentage of a firm's technology budget was saved by not sending some of its IT staff to this conference, but with ILTA's $1,025 fee (which included meals), and a deeply discounted hotel room, it couldn't have been much. And, there are firms (mine included) that will improve their bottom line by a lot more than what they spent on attendees of the ILTA '09 conference — because they realize that surviving (and hopefully flourishing) in these economic times is as much about exploring new efficiencies as it is about cutting costs.

[continued] Law.com – Can Tech Shows Boost a Firm’s Bottom Line?.

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An Increase in Hourly Rates? Get Ready for a Fight

December 3, 2009 By Leave a Comment

Last month, Susan Blount, the general counsel of Prudential Financial, sent a letter to the 60 law firms the insurance giant uses regularly. The letter addressed the general economy and the need to cut costs, but one announcement stuck out: Prudential informed the firms that in calendar year 2010, the company expected to pay for legal services at 2008 hourly rates. It wasn't a request as much as a take it or leave it deal, Blount says.

“The response,” Blount says, “has run the gamut, from acceptance to disgruntled acceptance to firms saying, 'You just don't understand!'”

Blount, of course, is not alone in her quest to control legal costs. Law firm and legal department consultants say GCs are looking for at least a freeze on rates in the coming year. Many are asking for cuts to 2009 billing rates of as much as 15 percent, says Ward Bower of Altman Weil.

Paul Hurd, general counsel of Daimler Trucks North America, says already instituted a significant rate cut a year ago, when he asked the 75 firms Daimler uses to set 2009 billing rates at about 90 percent of 2008 rates. What does he have in mind for 2010? Hurd says Daimler will ask firms to stick with the current hourly rate. That translates to an hour rate in 2010 that is lower than the firms' 2008 rates.

All this comes against the backdrop of an Altman Weil survey indicating that law firms, on average, are projecting an increase in 2010 hourly rates of about 4.1 percent, with the largest U.S. firms (those with 500 or more lawyers) expecting an even (slightly) higher increase. The Altman Weil results largely mirror those from The American Lawyer's recent Law Firm Leaders Survey on 2010 hourly rates.

“There's an inevitable collision here,” Bower says. “And I think the corporations are going to prevail.”

“It's a buyer's market,” says Bradford Hildebrandt, the chair and founder of the consulting company Hildebrandt International.

via Law.com – An Increase in Hourly Rates? Get Ready for a Fight.

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