In a nutshellanchor
Corporate is sometimes defined as a catchall practice area that includes everything that isn’t litigation or tax. The higher you go in the BigLaw tree, however, the more corporate becomes synonymous with mergers and acquisitions (M&A) and corporate governance. Some big firms include capital markets and private equity under this umbrella, but these areas are so complex and distinct that Chambers Associate prefers to treat them separately.
This practice area can involve advising clients from cradle to grave: from starting up and going public, to raising capital, selling, acquiring and combining businesses, to looking at the overall framework for operations and advising the board of directors on special transactions. Typical M&A work involves advising on selling, combining and acquiring businesses. BigLaw firms often focus on public M&A, advising either the buyer or seller in a transaction involving a public company. This area of corporate law routinely provides the biggest deals, is often cross-border and can involve cash and/or stock considerations. Private M&A takes place between private companies and can also be multifaceted, particularly where partnerships are involved. M&A lawyers can act as transactional coordinators too, because for every takeover or disposal, there will be employment, antitrust or tax implications to consider.
Corporate governance involves advising companies on crucial board affairs (including director duties) and their relationships with shareholders, which are paramount during transactions or shareholder disputes.
What corporate lawyers doanchor
Public M&A for buyer
- Identify the client’s business objectives.
- Identify the legal issues – these vary depending on factors like whether the deal is friendly or unfriendly.
- Build a 'road map' for the client from start to finish, and include a timeframe.
- Advise on deal and negotiating tactics.
- Conduct due diligence on other side.
- Determine – with the help of tax attorneys – the tax implications and if they require special structuring.
- Work with antitrust attorneys to assess regulatory obstacles, gain regulatory approval and analyze any other required regulatory approvals.
- If cross-border, work with local counsel.
- Review all the client’s contracts: business, employment, outsourcing, debt instruments, preferred stock, etc.
- Obtain third-party consents from lenders or parties to other contracts.
- Negotiate agreement, sign, announce publicly, close the deal.
- Attorneys for the target decide whether to negotiate, refuse the buyer’s overtures, sell, or do a deal with another company.
Realities of the jobanchor
- “The most important thing for a corporate lawyer is to develop an understanding of what's most important to your client – what they are really trying to accomplish and what issues really matter to them and why,” explains Victor Lewkow of Cleary Gottlieb Steen & Hamilton.
- An M&A transaction can have “a whole laundry list of tactics to choose from and issues to consider, depending upon what side you’re on,” says Alison Ressler of Sullivan & Cromwell, meaning that no two deals are exactly the same.
- Similarly, each deal will have a unique life cycle and so some will naturally take longer to complete than others.
- A key part of M&A work is explaining issues in a way that makes sense to the client. “Lawyers often use enormous amounts of jargon, with great expertise and complexity, which is not necessarily helpful for the businesspeople involved,” Lewkow tells us.
- He adds: “Often there is no perfect answer, so some of the time you’ll be helping the client figure out what the least 'bad' alternative is.”
- Due diligence will largely fall to associates and, though it can be tedious, it’s crucial for attorneys to understand what’s in the documents.
- “Law students tend to think of us as just reading and marking up documents, but a key characteristic of a top corporate lawyer is the ability to negotiate and construct arguments on your feet,” states Ressler.
- Delaware, where many corporations are incorporated, has among the most pronounced and expansive laws on the duties of the board and rules concerning special committees, which have tremendous implications for M&A transactions and corporate governance work. Lewkow confirms: “Many of the corporate law court decisions in Delaware influence how we address problems and generally go about structuring transactions.”
- Public companies, particularly those in the Fortune 500, are slick operations with considerable legal budgets and expertise, and usually need less hand-holding than smaller, less sophisticated clients.
- The high-pressure nature of the work is a result of “not only having the chance to be involved in issues that are very important to your client, but also making a genuine difference to those issues,” says Adam Emmerich of Wachtell, Lipton, Rosen & Katz.
- “Many deals have a lot of moving pieces, whereby solving one problem could actually create another problem,” according to Lewkow. “What works well for IP purposes, for example, might not work well for tax purposes.”
- Clients often expect transactions to be completed in a matter of days, which can mean working 18-hour days and weekends. This expectation can create an atmosphere of cooperation and expediency among parties. “You break down the walls between who’s doing what, and just dive in and do it,” Josh Bonnie of Simpson Thacher & Bartlett says.
- It also means that flexibility is key. “Sometimes you may have a plan to go on holiday, then find out that you need to be on the spot and fully engaged,” says Emmerich. However, this comes with the territory of it being “a dynamic, interesting and exciting practice.”
- “I don’t think there is one style which makes you an excellent or effective M&A lawyer,” explains Louis Goldberg of Davis Polk & Wardwell. He adds that at one end of the spectrum you have those who are “thoughtful, determined and tactical,” while at the other end there are the 'deal junkies': “They have the charisma and love the ins and outs of the deal climate.”
- The broader category of corporate finance includes representing borrowers in lending transactions with banks, though most firms organize themselves so that the lawyers who advise the lenders and borrowers are part of the banking and finance team.
Advice from the corporate gurusanchor
George Bason Jr, partner, Davis Polk & Wardwell
“The key to it is that law is a service profession. I think all personality types are welcome, but having that availability and enthusiasm 24 hours a day, 365 days a year is very important – once you accept that as a base line it's a wonderful profession. And, with a few exceptions, clients treat their lawyers with respect and view them as a valued part of the team. It's such a human thing, but a lot of people lose sight of the fact that it's a service business.”
Alison Ressler, partner, Sullivan & Cromwell
“There are three primary courses that students who are interested in corporate law should take. Securities regulation is key – you need to understand securities law and what’s involved in issuing securities. A general corporate law course explains the different forms of corporate entities and how federal and state regulations affect mergers. A business combinations or mergers class teaches the case law on mergers and the difference between hostile and friendly takeovers. Two key ancillary courses are corporate income tax and accounting for lawyers.”
“The best thing law students can do in preparation is read the Financial Times and The Wall Street Journal while in law school. Those papers will really give you a sense of what’s happening in the business world.”
Adam Emmerich, partner, Wachtell, Lipton, Rosen & Katz
“Like most things in life, if it's your passion and you find it engaging then it's relatively easy to do well. If you've gotten the idea that it sounds good on paper, or is remunerative or prestigious, that won't carry you through; you actually have to find it interesting.”
Victor Lewkow, partner, Cleary Gottlieb Steen & Hamilton
“I think what surprised me the most is how much I actually enjoy being a corporate lawyer. I had no background or experience in business, but quickly discovered that mergers and acquisitions was an interesting and challenging practice that I found fun – and still do.”