Media Interviews, Articles & Books
May 24, 2023
In the webinar “Pharmaceutical Deal Outlook: U.S. and European Perspectives,” Frank Aquila, Matt Hurd, Carsten Berrar, Olivier de Vilmorin and Jeremy Kutner discuss the outlook for M&A deals in the sector. The group of partners, who came together from S&C’s New York, Frankfurt, Paris and London offices, focus in particular on outlining how patent law impacts the tenor of mergers and acquisitions, how the regulatory landscape in both the United States and Europe is affecting dealmaking, and the different considerations for acquirers as opposed to sellers.
November 9, 2022
Andy Dietderich and Alexa Kranzley authored the article, “Preventative care for multinationals: six things for directors to consider before facing financial distress,” published in Financier Worldwide. To the surprise of their managers and directors, some multinational companies have ended up in the financial emergency room when they could have avoided the trip to the hospital altogether. The authors present six practical steps multinational directors should proactively take to alleviate these challenges.
October 26, 2022
Melissa Sawyer, Jacob Croke and Sheeva Nesva authored an article, “Privilege Waiver Risk Lessons From Twitter v. Musk,” in Law360. The article explores the risks of a potential privilege waiver in the transactional context, as highlighted by recent discovery disputes in the Twitter v. Musk litigation in the Delaware Court of Chancery. The authors explore the implications of these recent rulings and related unsettled issues, and offer strategies to minimize the risks of a privilege waiver.
August 29, 2022
Jay Clayton, Senior Policy Advisor and Of Counsel to Sullivan & Cromwell and former Chairman of the Securities and Exchange Commission, wrote an opinion piece, “The Peculiar Challenges of Crypto Regulation,” for the Wall Street Journal about the unique difficulties regulators and market participants face with regard to digital assets and the importance of taking action.
Among the factors Jay points out is that the “Uber strategy” of bending taxi regulation with a superior consumer offering will not work in financial services. “[A]s recent markets have shown, the fundamentals of regulation—transparency, limited leverage, liquidity and accountability—remain essential.” Clayton does note that “where crypto can achieve regulatory objectives with greater operational efficiency, it should be embraced.”
Jay recommends that the United States welcome the efficiencies provided by tokenizing payments and the custody of digitals assets. He urges regulators to move forward on stablecoin rules and the SEC to issue requirements for the custody of tokenized assets. In addition, he writes that the SEC and other regulators should go after those engaging in cryptocurrency activities that flout U.S. laws.
Overall, Jay argues that the United States needs to take action as the race to modernize the global financial infrastructure is essential to maintaining the dollar’s reserve status and the continuing global influence of America’s capital-markets policy.
August 29, 2022
Eric Kadel, co-head of S&C’s Foreign Investment and Trade Regulation and Economic Sanctions and Financial Crime Groups, commented on developments in the global foreign direct investment (FDI) landscape over the past 12 months as part of a roundtable discussion on foreign investment and national security covered by Financier Worldwide. Eric noted that FDI in the United States – as measured by submissions to CFIUS – has rebounded since 2020. He also stressed that foreign investors must be proactive and seek to identify in advance opportunities to mitigate possible national security concerns and consider in advance structural remedies or business commitments that may be necessary. He further noted that national security reviews have become much more common in jurisdictions other than the United States, so a multi-faceted approach is needed. Finally, he flagged that current legislative proposals in the United States would, if enacted, apply a CFIUS-like process to outbound investment, a potential future development that would be notable and impactful.
August 18, 2022
Senior M&A Partner Frank Aquila served as editor of the seventh edition of The Shareholder Rights and Activism Review, which is published by Law Business Research. Consisting of 16 chapters examining issues related to shareholder activism in 16 jurisdictions around the world, the text is the premier source on emerging trends in shareholder activism.
“Since the fourth quarter of 2021, global activism activity has been at higher levels than the market has seen for a number of years,” Frank writes in his preface to the Review. “Looking forward, activism activity is generally expected to remain strong, although events such as the war in Ukraine are having an impact on activity levels in certain jurisdictions.”
Frank also co-authored the chapter examining shareholder activism trends in the United States, along with partner Lauren Boehmke. Frank and Lauren have collaborated on every edition of the Review since its inception in 2016.
August 4, 2022
Global Head of M&A Melissa Sawyer spoke with The American Lawyer about the current M&A landscape and what it may signal for the future. She indicated that the number and pace of deals may slow down, but said, “This is ultimately going to be a great time for opportunistic strategic buyers looking to scoop up attractive targets while taking advantage of a less competitive dealmaking environment.” She also noted that boardroom conversations are a barometer to watch. “The leading indicator for me is what's happening in the boardroom,” she said. “The extent to which M&A features in those strategic plans—whether buy side or sell side—is going to have a huge impact on what happens to dealmaking over the next 12 to 24 months.
August 4, 2022
Senior M&A Partner Frank Aquila spoke with The American Lawyer about the evolving nature of M&A work in the current market, with the volume and value of global M&A deals down 17 and 21 percent, respectively, compared with 2021. While high valuations made public company acquisitions difficult in late 2021 and early 2022, Frank anticipates that falling valuations could spur activity in the remainder of this year. “Now that we are at a point where some of those 52-week highs will be behind us and the valuations will have come back to a point where potential acquirers will be more interested in beginning a dialogue, I think we will see more public company transactions moving forward,” Frank said.
August 2, 2022
The work of the Securities and Exchange Commission under former Chairman Jay Clayton's leadership was mentioned in an opinion article in The Hill by congressmen French Hill and Byron Donalds on reforming the SEC's “accredited investor” definition to allow more retail investors to participate in the private markets. The authors note that when Jay was SEC chairman, he modernized the definition by allowing individuals with certain financial certifications to be designated as accredited investors. The article also notes that Jay gave the SEC the ability to designate additional qualifying professional certifications, designations and other credentials.
August 1, 2022
Senior M&A Partner Frank Aquila spoke with The Wall Street Journal about the merger activity slowdown in 2022, following a record-setting year in 2021. Frank explains that, in addition to inflation and the war in Ukraine, speculation about stricter government regulation is also contributing to market uncertainty. “Boards and CEOs think long and hard before committing to a significant acquisition that might be tied up in the regulatory approval process for 18 months,” Frank says.
Despite the slowdown, S&C led all law firm advisers in global M&A deals announced in the first half of 2022, advising on $356 billion in deals. “We continue to see clients looking to do significant, transformative transactions,” Frank told the Journal, “and [we] expect to see many such deals move forward between now and the end of the year.”
July 25, 2022
On July 19, Jay Clayton, S&C Senior Policy Advisor and Of Counsel and former Chairman of the Securities and Exchange Commission, spoke at Bloomberg's Crypto Summit on the state of regulation of digital assets, including cryptocurrencies, stablecoins and digital asset securities, in the United States and globally.
Jay also addressed the recent volatility in the industry and commented that what we are seeing is not new, but age-old regulatory lessons playing out in a new market. He also spoke about the difficulty of regulating digital assets, since it requires global coordination across a new asset class at the retail level, and believes that providing a clear path for the adoption of stablecoins and rules for crypto custody will be critical steps if we are to see widespread adoption of distributed ledger technology and “tokenization”.
July 21, 2022
Senior Chair Rodge Cohen appeared on Bloomberg TV's “Balance of Power” to discuss a range of topics, including capital requirements, the recent confirmation of Michael Barr as Vice Chair for Supervision of the Federal Reserve and cryptocurrency regulation.
Addressing bank capital, Rodge said that imposing additional capital requirements on banks could adversely affect their ability to lend in the future, and the regulatory approach to certain areas of lending – for example, commercial real estate – is currently restricting lending.
Commenting on the recent confirmation of Michael Barr to serve as Vice Chair for Supervision of the Federal Reserve, Rodge said Barr is a superb choice and comes with a mastery of an extraordinarily complex regulatory system. He also said that Barr will be an effective leader, with a strong focus on the consumer.
On cryptocurrency regulation, Rodge noted that he was disappointed that the recent collapse of a number of cryptocurrencies has not created more urgency for regulation, especially as many users lost money. He also pointed to the truly responsible players in this space that do not shy away from regulation, and see regulation as an opportunity rather than an obstacle. He suggested that the Financial Stability Oversight Counsel (FSOC) could play a role by bringing administrative agencies together to regulate this sphere.
July 20, 2022
Samantha Hynes was profiled in the latest edition of “How I Made Partner,” a series of interviews from The American Lawyer. Samantha, who focuses on antitrust matters in transactions and litigation, discusses her path to partnership, the mentors that guided her, and her advice for the next generation of lawyers. "Do your best on every assignment. Demonstrate that you can be a leader in your practice area by keeping up on the latest legal and policy developments impacting your clients. And, most importantly, build relationships across your firm,” Samantha recommends.
June 29, 2022
Morgan Ratner was asked by the Supreme Court to defend the U.S. Court of Appeals for the Eighth Circuit's rationale in a habeas case, as reported by Bloomberg Law. The article notes that Morgan is one of only a handful of female attorneys asked by the Supreme Court to argue in support of a lower court opinion that the parties decline to defend. She previously argued eight cases before the Court during her time at the U.S. Solicitor General's Office before joining S&C's Supreme Court and Appellate practice. According to Bloomberg Law, Morgan is just the ninth woman of at least 69 appointments the court has made since 1926.
June 22, 2022
Jay Clayton appeared on CNBC's “Squawk Box” to discuss the role of domestic and global financial regulators going forward following the Federal Reserve's decision to raise interest rates by 75 basis points. He noted that macroeconomic conditions remain challenging and, to date, the market sell-off has been orderly. He also emphasized that, while taming inflation is the Fed's focus, risks remain in energy, agriculture and the supply chain industries that other regulators must consider. He also commented that the rising costs of energy and food along with higher interests rates are likely to have a negative effect on consumers and businesses over time and that government officials need to monitor financial stability. Given the ongoing geopolitical instability, Jay also noted the importance of global leadership and coordination in global markets.
June 14, 2022
Senior M&A Partner Frank Aquila spoke to IR Magazine about best practices for lawyers and other investment relations professionals dealing with activist investors. Frank emphasizes the importance of maintaining composure and consistency. “If the company's message is credible, consistent and transparent, your shareholders will be more likely to support you in the face of an activist investor campaign.”
May 16, 2022
S&C's Senior M&A partner Frank Aquila spoke with The American Lawyer on the change in deal flow in 2022. Frank indicated that, while the market looks different following 2021's record-breaking year, the bigger deals will still get done, with technology M&A being a potential growth area.
Frank said, “To a certain extent, the big deals can get done whenever the big players want them. […] They have the best access to cash, the best access to borrowing. Typically the more leveraged buyer has more issues. I think big deals will get done, but it will be on a case-by-case basis.”
April 21, 2022
Frank Aquila, the Firm’s Senior M&A Partner, authored the introduction to the 2022 edition of Chambers Global Practice Guide: Corporate M&A. In his introduction, Frank surveys the M&A landscape in 2021, examining the historic levels of M&A activity as well as the lingering effects of the COVID-19 pandemic, and offers insight into the potential factors that may impact M&A activity this year.
“While certain drivers of the record M&A activity levels in 2021, such as historically low interest rates and skyrocketing equity values, may not hold in 2022, certain other trends will likely remain and continue supporting a robust M&A market in 2022,” Frank writes.
Read Frank’s full introduction here.
March 31, 2022
Jonathon Hannah recently spoke to Financier Worldwide about key considerations for investing in hydrogen projects. Jonathon discussed the technological and regulatory developments that are driving investment opportunities in clean hydrogen projects as well as risk management factors and the unique features that participants in this nascent industry should be aware of. He described recent market developments and the outlook for hydrogen, particularly the critical role of government policies and initiatives to support the development of clean hydrogen and stimulate investment.
March 29, 2022
In a Financial Times article, Inosi Nyatta, co-head of S&C's Project Development & Finance practice, shared her thoughts on how the United States' recently-announced plans to help Europe reduce dependency on Russian gas could be implemented. The article outlines proposed strategies for distributing liquefied natural gas, including cargo diversions, which Inosi noted could require contract amendments.
March 22, 2022
S&C Global Head of M&A Melissa Sawyer and Rita-Anne O'Neill, co-head of S&C's Global Private Equity Group, spoke on the panel, “Hot Topics in M&A,” at Tulane's Corporate Law Institute in New Orleans. Rita moderated the panel, which covered dealmaking in 2021 and trends for 2022, including macro factors affecting M&A and the impact of developments in SEC rulemaking on activism and spinoffs.
The discussion was covered by Reuters (here and here), Axios and Law360. Melissa noted that in an environment of uncertainty, there is more focus on quiet, efficient negotiations. She recommended that before pursuing a deal, management teams check in on their boards. She also discussed the return to in-person interactions, and how that can foster collegiality, trust and confidence. “After all, boards are human beings and deals rely on people trusting each other and trusting the advice that they are receiving,” she said.
Rita serves as co-chair of the Institute, which brings together leading mergers and acquisitions and securities practitioners, Delaware Supreme Court and Court of Chancery judges, corporate counsel and investment bankers to discuss key issues in M&A, corporate and securities law.
To read more about the panel, click here.
March 11, 2022
In an Insider article discussing how activist investors use ESG concerns to bolster campaigns, S&C partner Marc Treviño provided insight into how he advises companies to prepare for this scenario. He said he often tells clients, "Let's look at the low-hanging fruit on your governance, on your disclosure, on your board composition. Let's address that before someone calls it out as a weakness for us," and noted that more clients are now taking those steps on the environmental and social side.
March 9, 2022
In an FT Agenda article discussing proxy contest voting trends and the potential impact of the new universal proxy rule on the 2023 proxy season, S&C partner Lauren Boehmke provided insight into the role played by institutional shareholders. “Institutional shareholder support is critical to winning or losing a shareholder vote,” she said. “Institutional investor support in a proxy contest is driven by building solid relationships through shareholder engagement on a clear day before an activist arrives.”
March 8, 2022
Insider profiled the S&C team advising BlockFi Lending as it entered into landmark settlements with the SEC and 32 state securities regulators clarifying regulatory questions surrounding cryptocurrency lending practices BlockFi Lending is the first company to settle with the SEC or state regulators regarding interest-bearing crypto accounts. In connection with the settlement, BlockFi Lending's parent, BlockFi Inc., became the first company to announce plans to register with the SEC a new interest-bearing crypto account product. "They haven't made us any promises, but we're optimistic that this will be successfully registered," said Steve Peikin. The article highlighted Steve and several other members of the S&C team, including Jamie McDonald, Julia Malkina, Bob Buckholz, Rick Wertheim, Andrew Gerlach, Jeff Hochberg, Brad Harsch, Tracey Russell, Mario Schollmeyer and Amanda Shami.
March 4, 2022
Melissa Sawyer authored a blog post on the Retail Industry Leaders Association website titled “2022 Proxy Season Look Ahead.” In the post, Melissa highlights 2022 proxy season trends that the retail industry may consider when addressing Rule 14a-8 shareholder proposals. These include environmental, social and governance trends, institutional investors' and proxy advisors' voting policies and changes in SEC regulations. This year, environmental proposals continue to gain traction as institutional investors, proxy advisors and the SEC support enhanced climate-related disclosures. Proposals seeking DEI and HCM disclosures may also gain more shareholder support. To read the post, click here.
S&C's 2021 U.S. Shareholder Activism in Review and a Look Ahead is available here.
Our 2021 Proxy Season Review may be found here.
February 22, 2022
The Recorder profiled Sarah Payne following her promotion to Managing Partner of S&C's Palo Alto office. Sarah, who is also co-head of the Firm's Capital Markets and Technology M&A and Finance Groups, is the first woman in the Firm to take on the local leadership role. Sarah spoke about how Sullivan & Cromwell distinguishes itself in the market, and the importance of bringing together diverse backgrounds and creative perspectives.
February 18, 2022
Carsten Berrar, managing partner of S&C's Frankfurt office and co-head of S&C's Capital Markets Group, has been named a “Legal All Star 2021” for German Capital Markets by Wirtschaftswoche and Handelsblatt, two renowned German media outlets. The publications develop an annual list of Germany's top lawyers, ranking just three lawyers in each category. Of the three lawyers in the Capital Markets category, Carsten ranked first for 2021.
February 15, 2022
Michelle Chen was profiled in the latest edition of “How I Made Partner,” a series of interviews from The American Lawyer. In the profile, Michelle discusses her path to partnership at S&C and what she would say to young lawyers hoping to become a partner themselves one day. “Show a commitment to clients and intellectual interest in the law,” she said, underscoring the importance of anticipating clients' needs. “Show that you are interested not just in the assignment of today, but in being a leader in a field that will change in ways large and small throughout your career.”
February 15, 2022
For his regular column in Practical Law, Senior M&A Partner Frank Aquila penned an article addressing “ESG Developments and Considerations” that boards of directors should consider, including:
Recent legislative and regulatory developments;
Trends in ESG-related shareholder proposals;
ESG-focused shareholder and stakeholder activism; and
Disclosure and messaging issues.
January 28, 2022
Senior M&A Partner Frank Aquila talked to Law360 about how S&C became a leader in public M&A by drawing from expertise in different practice areas, building longstanding relationships and developing a deep bench of talent. "Beyond having a very strong core public company M&A group, a firm needs to have the broader range of skills,” said Frank. “M&A is not simply negotiating an agreement, or doing the tender offer or proxy statement." He also highlighted that S&C's generalist approach helps to ensure the firm has strong lawyers in all practice areas, and mentioned that S&C encourages talent development by providing younger M&A lawyers with the opportunity to work directly with top partners.
January 27, 2022
Law360 profiled Amanda Davidoff following her promotion to Managing Partner of S&C's Washington, D.C., office. Amanda, who is also the Deputy Managing Partner of S&C's Litigation Group, said she is proud to lead an office with such a longstanding record of success and discussed plans to further develop the D.C. office's growing antitrust, Supreme Court & appellate, financial institutions and criminal defense investigations practices.
January 25, 2022
Global Head of M&A Melissa Sawyer and Senior M&A Partner Frank Aquila co-authored an article for The M&A Lawyer reflecting on the record-breaking year of M&A dealmaking that was 2021, and forecasting another busy year for M&A lawyers in 2022. Melissa and Frank discuss the impact of COVID-19 on shareholder activism, the popularity of SPACs and an ensuing rise in regulation, the splitting of major conglomerates, the FTC's more aggressive stance on reviewing and challenging deals, the softening of the RWI market and ESG as the next big thing in transactional behavior.
January 24, 2022
The National Law Journal profiled Amanda Davidoff following her promotion to managing partner of S&C's Washington, D.C., office. As the first woman in the role, Amanda noted her priorities would include continuing to promote diversity and further building the office's growing antitrust, appellate and criminal defense investigations practices.
January 20, 2022
Frank Aquila spoke to Barron's about the shifting regulatory landscape around mergers and acquisitions. Scrutiny and enforcement of the booming mergers market have increased. But, while the market may slow as a result, it is unlikely to derail. Frank said, “While inevitably some parties may not be willing to accept increased risk and opt not to pursue a transaction, the vast majority of transactions will move forward and all but a select few will ultimately close.”
January 19, 2022
The Deal featured Lauren Boehmke in its Movers & Shakers: Rising Stars column, announcing her new role as M&A partner. The article highlighted Lauren's work on recent deals, including advising AT&T on its pending spinoff of Warner Media, which will combine with Discovery in a reverse Morris Trust transaction.
January 18, 2022
Rodge Cohen appeared on Bloomberg TV's “Balance of Power” to discuss President Biden's nomination of Sarah Bloom Raskin to be the Federal Reserve's Vice-Chair for Supervision. Rodge first noted that Ms. Raskin, with her experience as a state regulator, Federal Reserve Governor and Deputy Secretary of the Treasury, has the ideal resume for this post. Her state experience, combined with that of Governor Michelle Bowman, could promote the right-sizing of community bank regulation, he said.
January 13, 2022
Financial Services and M&A partner Andrew Gerlach spoke to Mergers & Acquisitions about the M&A dealmaking forecast for 2022, with an eye to cryptocurrency opportunities. Following a banner year for M&A, the frenzy of dealmaking is projected to continue, with continued growth in crypto/blockchain-related acquisitions.
January 12, 2022
The Deal featured Melissa Sawyer in an article announcing her new role as S&C's Global Head of M&A, succeeding Frank Aquila.
December 21, 2021
Garrard Beeney talked to ABC's Nightline about the Firm's pro bono work representing Nikki Addimando in her sentencing reduction and efforts to win clemency.
Nikki was convicted of murder in 2019 after killing her abuser and then-boyfriend in self-defense and sentenced to 19 years to life in prison. Garrard's team obtained a resentencing for her under New York's Domestic Violence Survivors Justice Act (DVSJA), which allows courts to shorten sentences when domestic violence was a contributing factor to a crime. Nikki was re-sentenced to seven-and-a-half years in prison. Nikki's team has now sent a clemency petition to New York Governor Kathy Hochul, signed by more than 18,000 supporters.
December 15, 2021
Despite the hardships of the pandemic, Latin America remains a region of promise for businesses and financial institutions seeking to expand their footprint, grow their customer base, and seize new opportunities. However, as the pandemic has illustrated, crises can emerge suddenly and unexpectedly. When that happens, the right preparation can mean the difference between success and failure.
Drawing on their industry-leading expertise in crisis management and Latin America, S&C partners Sergio J. Galvis, Robert J. Giuffra Jr. and Werner Federico Ahlers served as editors to the Guide and authored an introduction on how to manage crises effectively. In addition, S&C lawyers authored three chapters.
November 12, 2021
Scott Crofton spoke to FT Agenda in a recent article about how mandatory vaccination policies may create new grounds for plaintiffs to claim that board members breached their oversight duties. The article notes that over the last several years, Delaware courts have seemed increasingly inclined to allow cases alleging board oversight failures to move forward, bogging board members down in so-called Caremark litigation.
November 11, 2021
Frank Aquila, S&C's global head of M&A, spoke to the Financial Times about General Electric's plan to split into three companies. Frank told the FT that the move could signal the beginning of a trend among large companies looking to simplify their portfolios. “GE has finally found the key to unlocking the remaining value for its shareholders,” he said. “Given the pressure from activist investors we are likely to see more spin-offs.”
September 30, 2021
Andy Dietderich spoke to the Mexican Bar Association and the Escuela Libre de Derecho at the Association’s Third Insolvency Post-Graduate Degree, held on September 23. Andy delivered a presentation titled “Pragmatic Comity: The Restructuring of Latin American Companies in U.S. Courts,” in which he discussed the legal procedures U.S. courts have developed to assist with the reorganization of non-U.S. multinationals. In addition to explaining the history of the legal developments on this topic, Andy also offered practical examples, as well as insights into current trends and best practices.
September 29, 2021
Over the past several years, governments across Latin America have been increasingly focused on corruption issues. Many have added to or enhanced anti-corruption provisions in their corporate liability schemes, leading to a more active enforcement environment for companies. The importance of robust internal compliance programs in the region has never been greater.
Drawing on their industry-leading expertise in corporate compliance, S&C litigation partners Brendan Cullen and Anthony Lewis authored a chapter in Latin Lawyer’s recently published Guide to Corporate Compliance. In the chapter “Developing a Robust Compliance Programme in Latin America” the authors offer a snapshot of some of the key risks and challenges that the compliance programs of multinational corporations in Latin America must confront, and provide best practices companies can adopt to maintain an effectively tailored compliance program.
September 17, 2021
Jim Bromley spoke to Reuters about why commercial bankruptcy filings have continued to fall throughout 2021, and why that trend may not last. Jim said that lenders have maintained a flexible approach to delinquent debtors, in some cases because it wouldn't be advantageous for them to become owners of businesses that have been severely impacted by the Covid-19 pandemic, such as movie theaters, cruise lines and theme parks. “Are creditors really interested in owning a movie theater chain at this moment? The answer is no,” he said. Instead of foreclosing, creditors have chosen to extend debt or seek increased collateral. But these aren't long-term solutions, Jim said, and this is unlikely to remain the favored approach as the pandemic recedes. Jim also added that the rising trend for investors to take on riskier investments in pursuit of better returns will likely lead to an uptick in corporate bankruptcy filings in 2022 or 2023. “There are bad deals that are attracting a lot of money and those bad deals will go bad,” he said.
September 10, 2021
Melissa Sawyer, co-head of S&C's Corporate Governance practice, spoke to FT Agenda about why directors saw lower reelection support during the most recent proxy season, with more directors receiving less than 70 percent support this year compared to last. In particular, investors are willing to vote against directors who are perceived to be on too many boards, those with long tenures and those who are viewed as being unresponsive to prior shareholder proposals. Melissa observed that while overall support for directors is down, board diversity remains a key focus for investors: “A lot of institutional investors are highly focused on board diversity and are less likely to punish diverse directors for [proxy voting policies related to board diversity].”
September 9, 2021
"Confessions of a Forum-Shopper” is a two-part article for the American Bankruptcy Institute Journal written by Andy Dietderich based on his personal experience representing corporate debtors. Part One appears in the September 2021 issue of the Journal and addresses forum shopping within the U.S. The second half of the article, expected for October, deals with international forum shopping by companies headquartered outside of the U.S.
“It might be a controversial position,” Andy writes, “but…I have come to believe strongly that some flexibility to forum-shop is, on balance, a very good thing for American bankruptcy law. In fact, forum shopping can be essential to restructure a business successfully, especially in challenging cases where the going concern is at risk.” Andy explains the reasons behind this conviction, and how forum shopping in past cases has helped S&C’s debtor clients preserve assets and save jobs.
Frank Aquila Talks to the Financial Times About Summer Dealmaking Surge
September 7, 2021
Frank Aquila, S&C's global head of M&A, spoke to the Financial Times about the summer dealmaking surge that has put 2021 on track to break records. Almost $4 trillion of deals have been agreed to since the start of the year, with $500 billion of transactions globally taking place in August alone. “With most businesses generating record profits, having access to inexpensive debt and experiencing high share prices, it is difficult to see M&A activity slowing over the next six to 12 months,” Frank said.
September 2, 2021
Renata Hesse was interviewed in icarus, a publication of the American Bar Association's Section of Antitrust Law Media and Technology Committee, for its “Frequency Boost” feature. This column aims to educate readers on the contributions made by the diverse community of people who impact antitrust and consumer protection in the media and technology sectors. Renata was interviewed by Courtney Armour, the Chief Legal Officer for the Distilled Spirits Council and Responsibility.org. In the discussion, Renata spoke about her work in the media and technology sectors, and the trends she has seen over the course of her career. “I think the biggest changes in the industry relate to the proliferation of content across a variety of different platforms and the changes in the ways that people consume content,” Renata said. “The pandemic has accelerated those changes. My own sense is that antitrust is still figuring out how to deal with these changes and we haven't yet landed on a consistent approach.”
August 13, 2021
CNBC interviewed Sharon Cohen Levin on the government's seizures and auctions of cryptocurrency. The U.S. government has seized $1.2 billion in cryptocurrency this fiscal year, including bitcoin, ethereum, litecoin and other currencies. But, the article notes, it was the 2013 takedown of the online black market known as Silk Road where federal agents “really cut their teeth in crypto search and seizure.”
Sharon worked on the Silk Road prosecution during her time leading the Money Laundering and Asset Forfeiture Unit in the U.S. Attorney's Office for the Southern District of New York. “It was totally unprecedented,” she told CNBC. “There was a wallet with approximately 30,000 bitcoins in it, which we were able to identify and seize. At the time, it was probably the largest bitcoin seizure ever, and it sold for around $19 million.” Today, that same wallet would be worth $1.1 billion.
July 27, 2021
Jim Bromley was interviewed by Bloomberg News on the recent increase in foreign companies filing bankruptcy cases in U.S. courts. Over a dozen major foreign corporations filed bankruptcy cases in the U.S. in 2020—more than doubling the previous high mark in 2002.
The U.S. system is best equipped to handle complicated restructuring cases, Jim told Bloomberg. “The local jurisdictions do not have as robust systems that would allow a complex, international entity to reorganize,” he said. “Most of the material creditors are connected to the U.S. in one way, shape or form.” The U.S. is particularly attractive for European-based companies, Bromley added, given uncertainty in UK courts stemming from Brexit.
August 9, 2021
David Rein, Matthew Schwartz and Brian Gottlieb authored an article for Practical Law: The Journal titled, “Defending Parallel Securities Litigation in Federal and State Court.” The article, which was published online in January, was updated by the authors and selected as the cover feature for the August/September issue of the publication’s print edition. The authors discuss how the U.S. Supreme Court’s ruling in Cyan v. Beaver County Employees Retirement Fund has changed the landscape for securities litigation, and offer insights on handling lawsuits alleging overlapping federal securities law claims in both state and federal court. The authors also suggest measures companies may take to mitigate the risks of parallel securities litigation.
Reuters Interviews Steve Peikin on New SEC Chair
July 9, 2021
Steve Peikin was interviewed by Reuters on the appointment of Gary Gensler to chair the Securities & Exchange Commission. Steve, who served as co-director of the agency's Division of Enforcement from 2017 to 2020, told Reuters that he expects continued emphasis on the agency's enforcement program, noting that it is the most visible part of the agency. “Every Chair, I think, has the opportunity to put their own sort of stamp on what they think is important and secondly has to react to events,” he said. “I think you're going to see a lot of attention focused on SPACs, [and] attention focused on the market volatility events of earlier this year. Those are things that I think the public expects the SEC to look into.”
BBC Interviews Tony Lewis on 2014 Sony Hack
July 7, 2021
Tony Lewis speaks to the BBC about his role investigating the 2014 hack of Sony Pictures in a new BBC podcast, “The Lazarus Heist.” Speaking to journalists Geoff White and Jean Lee, Tony discusses his time as an Assistant U.S. Attorney and explains the measures the hackers took to conceal their identities. He also explores how investigators were able to discover that North Korea was behind the cyberattack. Tony appears in episodes two and four of the series.
July 2, 2021
Rodge Cohen appeared on Bloomberg TV’s “Balance of Power” to discuss lessons from recent bank stress tests run by the Federal Reserve.
July 27, 2021
The emergence of transnational mass litigation raises critical issues. Parallel proceedings in multiple national jurisdictions, arising out of a common event or set of facts, will likely increase and require new models for resolving these claims. This report provides a detailed survey of this topic, using the Volkswagen “clean diesel” litigation as a case study.
This report is a product of a conference sponsored by Stanford Law School, the RAND Institute for Civil Justice, and the RAND Kenneth R. Feinberg Center for Catastrophic Risk Management and Compensation that included participants from Australia, Brazil, Canada, Chile, Germany, the Netherlands, and the United States. S&C Co-Chair Robert Giuffra Jr., who is leading Volkswagen through mass litigation over its diesel emissions issues, shared his views and experience in the discussions.
Reuters' QA with Steve Peikin on New SEC Chair
June 23, 2021
Steve Peikin was interviewed by Reuters on the appointment of Gary Gensler to chair the Securities & Exchange Commission. Steve, who served as co-director of the agency's Division of Enforcement from 2017 to 2020, told Reuters that he expects continued emphasis on the agency's enforcement program, noting that it is the most visible part of the agency.
June 16, 2021
In an article about the new documentary “And So I Stayed,” the New York Times spoke to S&C lawyers Garrard Beeney and Angela Ellis about their pro bono work representing survivors of domestic violence. The film highlights the stories of women who fought back against domestic abuse and received lengthy prison sentences as a result—an injustice that the passage of New York's historic Domestic Violence Survivors Justice Act (DVSJA) aims to correct.
Bob Giuffra Interviews Mark Schneider, CEO of Nestlé S.A.
April 21, 2021
Mark Schneider, CEO of Nestlé S.A., shared his insights on “The Future of Nutrition” with members of the American Swiss Foundation. The conversation was moderated by Robert Giuffra Jr., Chairman of the American Swiss Foundation. Chairman Emeritus Steven Hoch gave welcome remarks, and Co-Chairman Markus Diethelm introduced our distinguished guest.
March 2, 2021
Latin America attracts corporations and financial institutions for its business opportunities, yet its shifting political landscapes and other factors, including the continuing effects of the COVID-19 pandemic, may present operational risks.
Drawing on their industry-leading expertise in crisis management and Latin America, S&C partners Sergio J. Galvis, Robert J. Giuffra Jr. and Werner Federico Ahlers served as editors to the Guide and authored an introduction on how to manage crises effectively. In addition, S&C lawyers authored two chapters.