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February 24, 2020 |
Changes to Marketing Alternative Investment Funds in the EU

Click for PDF The EU has adopted a package of measures which will implement some important changes to the way in which alternative investment fund managers (“AIFMs”) market their funds cross-border in the EEA. One of the principal aims of the changes is to remove barriers to cross-border marketing of alternative investment funds (“AIFs”) which have arisen in large part due to differing implementation of the Alternative Investment Fund Managers Directive (“AIFMD”) across member states of the EEA since 2014. The new definition of and conditions for “pre-marketing” will establish a defined phase of “pre-marketing” as distinct from “marketing” under the AIFMD. Importantly, once an EEA AIFM has engaged in “pre-marketing” activity in a jurisdiction any investment from an investor in that jurisdiction within 18-months of such pre-marketing will be deemed to be the result of marketing activity. Consequently, the ability to rely upon reverse solicitation will be curtailed within the EEA. The impact for non-EEA AIFMs is not yet clear since the CBD/R (as defined below) address only EEA AIFMs. However, it is highly unlikely that jurisdictions in the EEA will want to retain different pre-marketing regimes for EEA versus non-EEA AIFMs. This is something that non-EEA AIFMs looking to raise capital within the EEA in 2021 and beyond should keep under review. The package of reforms is comprised of Directive (EU) 2019/1160 regarding the cross-border distribution of collective investment undertakings (“CBD”) and Regulation (EU) 2019/1156 on facilitating cross-border distribution of collective investment undertakings (“CBR”) (together “CBD/R”) and will come into force within the EEA on 2 August 2021. The CBD/R apply to EEA AIFMs. However, it should be noted that Member States do not have a completely free hand in relation to their national private placement regimes (“NPPR”). It is highly likely that at least some of the changes will also impact how non-EEA AIFMs are able to market their funds into the EEA under the applicable NPPR. The full impact for non-EEA AIFMs will only be seen over time. However, non-EEA AIFMs should have the CBD/R on their radar and monitor changes to how they market their funds into the EEA as the implementation date approaches. It should be noted that the CBD/R applies to the distribution of funds under both the AIFMD and the UCITS Directive. However, this briefing note focusses exclusively on the changes relevant to AIFMs.

Principal changes:
  • Harmonised definition and conditions of “pre-marketing”
  • Notification requirement to the national competent authority (“NCA”) of the AIFM when “pre-marketing” has commenced
  • Any subscription within 18-months of “pre-marketing” will be deemed to be the result of marketing
  • Any third party marketing an AIF on behalf of an AIFM must be authorised as a MiFID investment firm, credit institution, AIFM or UCITS management company
  • Restrictions on marketing of a successor fund following de-notification of marketing
Harmonised “pre-marketing” regime for EEA AIFMs Since 2014, due to differences in the implementation of the AIFMD as regards when “marketing” commences for the purposes of the AIFMD, frustrations have been voiced regarding the inconsistent ability to pre-market across Europe in order to test the investor appetite for an investment strategy in the EEA. This arises because in some jurisdictions “marketing” is considered to occur at an early stage in the investment process, whereas in other jurisdictions (e.g. Luxembourg (and the UK)) “marketing” is considered to occur at a much later stage when the offer of interests in an AIF is capable of being accepted by investors on the basis of final form subscription documents. The CBD/R introduces an EEA-wide definition of “pre-marketing”, i.e. those promotional activities which can take place before the marketing passport (which only applies once “marketing” has commenced) is available. The definition of “pre-marketing” is broad: “provision of information or communication, direct or indirect, on investment strategies or investment ideas by an EU AIFM or on its behalf, to potential professional investors domiciled or with a registered office in the Union in order to test their interest in an AIF or a compartment which is not yet established, or which is established, but not yet notified for marketing in accordance with Article 31 or 32, in that Member State where the potential investors are domiciled or have their registered office, and which in each case does not amount to an offer or placement to the potential investor to invest in the units or shares of that AIF or compartment”.
Key features of “pre-marketing”:
  • Provision of information or communication on investment strategies or ideas (whether direct or indirect)
  • By an EEA AIFM or on its behalf (e.g. placement agent or non-EEA sponsor)
  • To potential professional investors in the EEA
  • In order to test their interest:
  • In an AIF/compartment which is not yet established; or
  • In an AIF/compartment which is established, but not yet notified for marketing under AIFMD in that Member State
  • In each case does not amount to an offer or placement to the potential investor to invest in the units or shares of that AIF/compartment
Conditions for “pre-marketing” The definition of “pre-marketing” is augmented by the new conditions for pre-marketing. An EEA AIFM may engage in “pre-marketing”, except where the information provided to investors:
  • Is sufficient to allow investors to commit to acquiring interests in the AIF;
  • Amounts to subscription forms (or similar documents) whether in draft or final form;
  • Amounts to constitutional documents, a prospectus or offering documents of an AIF which has not yet been established, in final form.
In addition, any draft offering documents must not contain sufficient information to allow investors to take an investment decision and must include a statement that: (i) the document does not constitute an offer or an invitation to subscribe for interests in the AIF; and (ii) the information presented should not be relied upon because it is incomplete or subject to change. It is clear that simply labelling a document as draft but otherwise being in final form will not be acceptable. In addition, the circulation of subscription forms is prohibited and they must not be provided even in draft form during a “pre-marketing” exercise. Notification of pre-marketing It will be a requirement for EEA AIFMs to notify their NCA within two weeks of commencing “pre-marketing”. The notification will need to specify where and for which periods the pre-marketing is taking or has taken place with a brief description of the pre-marketing. This notification of pre-marketing is distinct from the AIFMD marketing process and it will not be possible for an EEA AIFM to accept a subscription before the AIFMD marketing process has been completed. Importantly, any subscription made within 18-months of pre-marketing activity will be considered to be the result of marketing activity, triggering the AIFMD marketing process. Consequently, commencing pre-marketing will effectively preclude reliance by the AIFM on reverse solicitation for a period of 18-months. Placement agents and other distributors Significantly, any third party carrying out pre-marketing on behalf of an AIFM must be authorised in the EEA as an investment firm (or a tied agent of an investment firm), credit institution, UCITS management company or AIFM. This is an important change, particularly in light of Brexit. Placement agents and other distributors will need to consider whether they have the appropriate regulatory authorisations and seek to move EEA distribution into an appropriately authorised entity in advance of 2 August 2021. Discontinuing marketing There has been considerable uncertainty and diverge of practices across the EEA in relation to when an AIFM marketing under the AIFMD marketing passport can discontinue marketing. The CBD/R introduces a new formalised procedure for this. An AIFM will be able to discontinue marketing where certain conditions are fulfilled and a notification is made to the relevant NCA. The conditions are:
  • Except in the case of closed-ended AIFs, making a blanket offer to repurchase or redeem interests held by investors in that Member State;
  • Publicising the intention to terminate marketing arrangements;
  • Terminating or modifying contracts with intermediaries/distributors to ensure they do not continue to market the AIF.
There is effectively a restriction on pre-marketing of successor AIFs once an AIF has been de-notified from marketing. The AIFM cannot engage in pre-marketing that AIF (or a successor AIF with similar investment strategy/idea) in that Member State for 36 months from the date of de-notification. Clearly this will cause difficulties, particularly for closed-ended funds. It is likely that AIFMs will simply choose not to de-register for marketing in order to not impact when the successor fund can be taken to market. Impact on non-EEA sponsors The CBD/R impacts EEA AIFMs directly. However, the changes will impact non-EEA managers in a range of ways:
  • EU Member States do not have a completely free hand as regards non-EEA AIFMs marketing in their jurisdiction under Article 42 of the AIFMD and their NPPRs. The CBD contains a recital that states that national rules cannot in any way disadvantage EEA AIFMs vis-à-vis non-EEA AIFMs. It is therefore highly likely that we will see a levelling-up of the NPPRs across the EEA with the requirements of the CBD/R on pre-marketing and discontinuation of marketing.
  • Non-EEA managers using an EEA host AIFM in order to avail themselves of the EEA marketing passport for a parallel vehicle will find the marketing of the fund subject to the new requirements. In particular, the requirement that any person marketing the fund on behalf of the EEA AIFM (i.e. the sponsor) must be authorised under the relevant sectoral legislation in the EU.
Application in the UK The Financial Services (Implementation of Legislation) Bill 2017-19 provided a mechanism to implement EU financial services legislation that: (1) had been adopted by the EU, but did not yet apply; and (2) EU proposals that were in negotiation and that may have been adopted up to two years post-Brexit. The CBD/R were listed in the Schedule to the Bill. However, the Bill was not passed by the end of the 2017-19 parliamentary session and made no further progress. It is, therefore, currently uncertain how the CBD/R will be implemented in the UK post-Brexit.
Gibson Dunn's lawyers are available to assist in addressing any questions you may have regarding these developments.  Please contact the Gibson Dunn lawyer with whom you usually work in the firm's Investment Funds, Private Equity or Financial Institutions practice groups, or the authors: Michelle M. Kirschner - London (+44 (0)20 7071 4212, mkirschner@gibsondunn.com) Martin Coombes - London (+44 (0)20 7071 4258, mcoombes@gibsondunn.com) Please also feel free to contact any of the following practice leaders and members: Investment Funds Group: Michelle M. Kirschner - London (+44 20 7071 4212, mkirschner@gibsondunn.com) Chézard F. Ameer - Dubai and London (+971 (0)4 318 4614, cameer@gibsondunn.com) Albert S. Cho - Hong Kong (+852 2214 3811, acho@gibsondunn.com) John Fadely - Hong Kong (+852 2214 3810, jfadely@gibsondunn.com) Jennifer Bellah Maguire - Los Angeles (+1 213-229-7986, jbellah@gibsondunn.com) Y. Shukie Grossman - New York (+1 212-351-2369, sgrossman@gibsondunn.com) Edward D. Sopher - New York (+1 212-351-3918, esopher@gibsondunn.com) C. William Thomas, Jr. - Washington, D.C. (+1 202-887-3735, wthomas@gibsondunn.com) Gregory Merz - Washington, D.C. (+1 202-887-3637, gmerz@gibsondunn.com) Private Equity Group: Scott Jalowayski - Hong Kong (+852 2214 3727, sjalowayski@gibsondunn.com) Sean P. Griffiths - New York (+1 212-351-3872, sgriffiths@gibsondunn.com) Ari Lanin - Los Angeles (+1 310-552-8581, alanin@gibsondunn.com) Steven R. Shoemate - New York (+1 212-351-3879, sshoemate@gibsondunn.com) Financial Institutions Group: Arthur S. Long - New York (+1 212-351-2426, along@gibsondunn.com) Matthew L. Biben - New York (+1 212-351-6300, mbiben@gibsondunn.com) Michael D. Bopp - Washington, D.C. (+1 202-955-8256, mbopp@gibsondunn.com) Stephanie Brooker - Washington, D.C. (+1 202-887-3502, sbrooker@gibsondunn.com) M. Kendall Day - Washington, D.C. (+1 202-955-8220, kday@gibsondunn.com) Jeffrey L. Steiner - Washington, D.C. (+1 202-887-3632, jsteiner@gibsondunn.com) © 2020 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

February 4, 2020 |
Gibson Dunn Ranked in the Legal 500 Deutschland 2020

The Legal 500 Deutschland 2020 ranked Gibson Dunn in seven practice areas and has inaugurated Frankfurt partner Dirk Oberbracht to its Hall of Fame for Private Equity. Munich partner Benno Schwarz was also named as a Leading Lawyer for Internal Investigations. The firm was recognized in the following categories: Antitrust, Compliance, Corporate, Internal Investigations, M&A Large Deals (€500m +), M&A Mid-Size Deals (-€500m), and Private Equity: Transactions. The rankings were published on January 30, 2020. Dirk Oberbracht is a leading Private Equity and M&A lawyer. He advises private equity investors, corporate clients, families and management teams. He has extensive expertise in cross-border and domestic deals, including carve-outs, joint ventures, minority investments, corporate restructurings and management equity programs. Benno Schwarz focuses on white collar defense and compliance investigations. For more than 25 years, he has advised companies on sensitive cases and investigations in the context of all compliance issues with international aspects, such as the implementation of German or international laws to prevent and avoid corruption, money laundering or avoiding economic sanctions in the corporate context.

January 21, 2020 |
Gibson Dunn Ranked in Legal 500 Asia Pacific 2020

Gibson Dunn has been recognized in 15 categories in the 2020 edition of The Legal 500 Asia Pacific.  The Singapore office was ranked in the following Foreign Firms categories: Banking and Finance, Corporate and M&A, Energy and Restructuring.  The Hong Kong office was ranked in the Antitrust and Competition, Banking & Finance, Corporate (including M&A), Investment Funds, Private Equity, Projects and Energy, and Regulatory: Anti-Corruption and Compliance categories.  The Beijing office was ranked in the Corporate (including M&A): Foreign Firms category. Additionally, the firm was ranked for its work in India, Indonesia and the Philippines.  Brad Roach was named as a Leading Lawyer in the Singapore: Energy – Foreign Firms and Indonesia: Foreign Firms categories;Kelly Austin was named as a Leading Lawyer in the Hong Kong: Regulatory: Anti-Corruption and Compliance category; Michael Nicklin was named as a Leading Lawyer in the Hong Kong: Banking & Finance category; Scott Jalowayskiand Brian Schwarzwalder were named as Leading Lawyers in the Hong Kong: Private Equity category; Sébastien Evrard was named as a Leading Lawyer in the Hong Kong Antitrust and Competition category; Troy Doyle was named as a Leading Lawyer in the Singapore: Restructuring & Insolvency – Foreign Firms category; and John Fadelyand Albert Cho were named as Leading Lawyers in the Hong Kong: Investment Funds category.  Youjung Byon has also been named as a Rising Star for Hong Kong: Investment Funds. The rankings were published on January 16, 2020. Gibson Dunn’s Singapore lawyers deliver exceptional service to our international clients doing business in the region and our Asia-based clients with respect to their international matters. Our lawyers have lived and worked extensively in the region and possess U.S., English, Singapore and Indian law qualifications and experience.  Furthermore, having been awarded a Qualifying Foreign Law Practice (QFLP) license by the Singapore Ministry of Law in 2013, we are one of the few firms that are able to provide our clients with local Singapore law advice in permitted areas. Gibson, Dunn & Crutcher’s Hong Kong office provides an extensive range of U.S., Hong Kong and English legal advice to global and Asia-based clients.  We offer our clients all the advantages of deep local expertise combined with the strengths of a global firm.  Our Hong Kong lawyers handle some of the most challenging and complex transactions and regulatory matters across Asia. Gibson, Dunn & Crutcher’s Beijing office is dedicated to servicing the needs of our clients establishing operations and doing business in China and those of our Chinese clients in their international transactions.  The Beijing office works closely with lawyers in our Hong Kong office, enabling us to provide Hong Kong law capability where relevant.

January 7, 2020 |
Beau Stark and Robyn Zolman Named Denver’s Top Lawyers

Denver magazine 5280 named partners Beau Stark and Robyn Zolman to its annual “Denver’s Top Lawyers 2020” list, which recognizes “the best attorneys in the region.” The list was published in January 2020. Beau Stark advises private equity funds and other public and private enterprises in the energy sector and a broad range of other industries, in both international and domestic markets.  He has broad experience in all aspects of corporate practice, including public and private mergers and acquisitions, joint ventures, public offerings, capital markets transactions, securities offerings, management participation and financing, tender offers, private fund formation and general corporate matters. Robyn Zolman’s practice is concentrated in securities regulation and capital markets transactions.  She represents clients in connection with public and private offerings of equity and debt securities, tender offers, exchange offers, consent solicitations and corporate restructurings.  She also advises clients regarding securities regulation and disclosure issues and corporate governance matters, including Securities and Exchange Commission reporting requirements, stock exchange listing standards, director independence, board practices and operations, and insider trading compliance.

December 24, 2019 |
The Deal Named Evan D’Amico a Rising Star

The Deal profiled Washington, D.C. lawyer Evan D’Amico as a Rising Star. The feature was published December 24, 2019. Evan D’Amico advises companies, private equity firms, boards of directors and special committees in connection with a wide variety of complex corporate matters, including mergers and acquisitions, asset sales, leveraged buyouts, spin-offs and joint ventures.  He also has experience advising issuers, borrowers, underwriters and lenders in connection with financing transactions and public and private offerings of debt and equity securities.  

December 6, 2019 |
Ari Lanin and Benyamin Ross Named to Variety’s 2019 Dealmakers Impact Report

Century City partner Ari Lanin and Los Angeles partner Benyamin Ross were named to Variety’s 2019 Dealmakers Impact Report, which “highlights the top mavens guiding an industry that continues to re-invent itself.” The issue was published on December 4, 2019. Ari Lanin advises companies, private equity firms and investment banks across a wide range of industries, focusing on public and private merger transactions, stock and asset sales, joint ventures and strategic partnerships, contests for corporate control and public and private (including Rule144A) capital-raising transactions. Benyamin Ross advises companies, private equity and venture capital firms, and high net-worth individuals in mergers and acquisitions, equity investments, joint ventures, restructuring transactions and general commercial agreements.

December 6, 2019 |
Gibson Dunn Ranked in 2020 Chambers Asia Pacific

Gibson Dunn earned 16 firm rankings and 21 individual rankings in the 2020 edition of Chambers Asia-Pacific.  The firm was recognized in the Asia-Pacific Region-wide categories for Corporate/M&A, Corporate/M&A: Private Equity, and Investment Funds: Private Equity, as well as the following International Firms categories: China Banking & Finance: Leveraged & Acquisition Finance; China Competition/Antitrust; China Corporate Investigations/Anti-Corruption; Corporate/M&A: The Elite; China Investment Funds: Private Equity; China Private Equity: Buyouts & Venture Capital Investment; India Corporate/M&A; Indonesia Corporate & Finance; Philippines Projects, Infrastructure & Energy; Singapore Banking & Finance; Singapore Corporate/M&A; Singapore Energy & Natural Resources; and Singapore Restructuring/Insolvency: International. The following lawyers were ranked individually in their respective categories:

  • Kelly Austin – China Corporate Investigations/Anti-Corruption
  • Albert Cho – China Investment Funds
  • Troy Doyle – Singapore Restructuring/Insolvency
  • Sébastien Evrard – China Competition/Antitrust
  • John Fadely – China Investment Funds
  • Scott Jalowayski – China Private Equity: Buyouts & Venture Capital Investment
  • Michael Nicklin – China Banking & Finance: Leveraged & Acquisition Finance
  • Jai Pathak – India Corporate/M&A, and Singapore Corporate/M&A
  • Brad Roach – Indonesia Projects & Energy, Singapore Energy & Natural Resources, and Singapore Energy & Natural Resources: Oil & Gas
  • Saptak Santra – Singapore Energy & Natural Resources
  • Brian Schwarzwalder – China Private Equity: Buyouts & Venture Capital
  • Patricia Tan Openshaw – China Projects & Infrastructure, and Philippines Projects, Infrastructure & Energy
  • Jamie Thomas – Indonesia Banking & Finance, and Singapore Banking & Finance
  • Graham Winter – China Corporate/M&A: Hong Kong-based
  • Yi Zhang – China Corporate/M&A: Hong Kong-based
  • Fang Xue – China Corporate/M&A: China-based
The rankings were published on December 5, 2019. Gibson Dunn’s Singapore lawyers deliver exceptional service to our international clients doing business in the region and our Asia-based clients with respect to their international matters. Our lawyers have lived and worked extensively in the region and possess U.S., English, Singapore and Indian law qualifications and experience.  Furthermore, having been awarded a Qualifying Foreign Law Practice (QFLP) license by the Singapore Ministry of Law in 2013, we are one of the few firms that are able to provide our clients with local Singapore law advice in permitted areas. Gibson, Dunn & Crutcher’s Hong Kong office provides an extensive range of U.S., Hong Kong and English legal advice to global and Asia-based clients.  We offer our clients all the advantages of deep local expertise combined with the strengths of a global firm.  Our Hong Kong lawyers handle some of the most challenging and complex transactions and regulatory matters across Asia. Gibson, Dunn & Crutcher’s Beijing office is dedicated to servicing the needs of our clients establishing operations and doing business in China and those of our Chinese clients in their international transactions. The Beijing office works closely with lawyers in our Hong Kong office, enabling us to provide Hong Kong law capability where relevant.

November 22, 2019 |
Jerry Farano, Beau Stark and Robyn Zolman Named to Denver Business Journal’s Who’s Who in Energy

The Denver Business Journal has named Denver partners Gerald (Jerry) Farano, Beau Stark and Robyn Zolman to its 2019 list of Who’s Who in Energy, featuring “the movers and shakers in metro Denver’s fast-moving energy industry.”  The list was published on November 22, 2019. Jerry Farano concentrates his practice on transactional matters in the energy industry, advising clients on domestic and international M&A, joint ventures, strategic alliances, and energy and infrastructure development projects. He has considerable experience with energy-related mergers and acquisitions, particularly in the sale and purchase of renewable, fossil fuel, and nuclear generation assets. Beau Stark advises private equity funds and other public and private enterprises in the energy sector and a broad range of other industries, in both international and domestic markets. He has broad experience in all aspects of corporate practice, including public and private mergers and acquisitions, joint ventures, public offerings, capital markets transactions, securities offerings, management participation and financing, tender offers, private fund formation and general corporate matters. Robyn Zolman’s practice is concentrated in securities regulation and capital markets transactions. She represents clients in connection with public and private offerings of equity and debt securities, tender offers, exchange offers, consent solicitations and corporate restructurings. She also advises clients regarding securities regulation and disclosure issues and corporate governance matters, including Securities and Exchange Commission reporting requirements, stock exchange listing standards, director independence, board practices and operations, and insider trading compliance.

November 20, 2019 |
Best Lawyers Recognizes Fang Xue as a Best Lawyer in China

Best Lawyers named Beijing partner Fang Xue to the first edition of the publication’s The Best Lawyers in China list. Fang was recognized for her Private Equity and Venture Capital Law practice. The list was published November 20, 2019. Fang Xue represents Chinese and international corporations and private equity funds in cross-border acquisitions, private equity transactions, stock and asset transactions, joint ventures, going private transactions, tender offers and  venture capital transactions, including many landmark deals.

November 12, 2019 |
Law360 Names Nine Gibson Dunn Partners as 2019 MVPs

Law360 named nine Gibson Dunn partners among its 2019 MVPs and noted that Gibson Dunn was one of two law firms with the most MVPs this year.  Law360 MVPs feature lawyers who have “distinguished themselves from their peers by securing hard-earned successes in high-stakes litigation, complex global matters and record-breaking deals.” The list was published on November 12, 2019. Gibson Dunn’s MVPs are:

  • Richard J. Birns, a Private Equity MVP [PDF] – Rich is a partner in the New York office and Co-Chair of the Sports Law Practice Group. He focuses his practice on U.S. and cross-border mergers, acquisitions, divestitures, joint ventures and financings for both corporations and leading private equity firms.  He also advises private investment funds on a variety of corporate issues, including securities law and shareholder activism matters.  He has extensive experience advising clients on significant transactional matters in media, sports and entertainment.
  • Michael P. Darden, an Energy MVP [PDF] – Mike is Partner-in-Charge of the Houston office and Chair of the Oil & Gas practice group. His practice focuses on International and U.S. oil and gas ventures (including LNG, deep-water and unconventional resource development projects), international and U.S. infrastructure projects, asset acquisitions and divestitures, and energy-based financings (including project financings, reserve-based loans and production payments).
  • Scott A. Edelman, a Trials MVP [PDF] – Scott is a partner in the Century City office and Co-Chair of the Media, Entertainment and Technology Practice Group. He has first-chaired numerous jury trials, bench trials and arbitrations, including class actions, taking well over 25 to final verdict or decision. He has a broad background in commercial litigation, including antitrust, class actions, employment, entertainment and intellectual property, real estate and product liability.
  • Theane Evangelis, a Class Action MVP [PDF] – Theane is a partner in the Los Angeles office, Co-Chair of the firm’s Class Actions Practice Group and Vice Chair of the California Appellate Practice Group. She has played a lead role in a wide range of appellate, constitutional, media and entertainment, and crisis management matters, as well as a variety of employment, consumer and other class actions.
  • Mark A. Kirsch, a Securities MVP [PDF] – Mark is Co-Partner-in-Charge of the New York office. His practice focuses on complex securities, white collar, commercial and antitrust litigation. He is routinely named one of the leading litigators in the United States.
  • Joshua S. Lipshutz, a Cybersecurity MVP [PDF] – Josh is a partner in the Washington, D.C. and San Francisco offices. His practice focuses primarily on constitutional, class action, data privacy, and securities-related matters.  He represents clients before the Supreme Court of the United States, the Ninth Circuit Court of Appeals, the California Supreme Court, the Delaware Supreme Court, the D.C. Court of Appeals, and many other state and federal courts.
  • Jane M. Love, a Life Sciences MVP [PDF] – Jane is a partner in the New York office. Her practice spans four areas: patent litigation, Patent Office trial proceedings including inter partes reviews (IPRs), strategic patent prosecution advice and patent diligence in transactions. She is experienced in a wide array of life sciences areas such as pharmaceuticals, biologics, biosimilars, antibodies, immunotherapies, genetics, vaccines, protein therapies, blood factors, medical devices, diagnostics, gene therapies, RNA therapies, bioinformatics and nanotechnology.
  • Matthew D. McGill, a Sports & Betting MVP [PDF] – Matthew is a partner in the Washington, D.C. office. He has participated in 21 cases before the Supreme Court of the United States, prevailing in 16.  Spanning a wide range of substantive areas, those representations have included several high-profile triumphs over foreign and domestic sovereigns. Outside the Supreme Court, his practice focuses on cases involving novel and complex questions of federal law, often in high-profile litigation against governmental entities.
  • Jason C. Schwartz, an Employment MVP [PDF] – Jason is a partner in the Washington, D.C. office and Co-Chair of the Labor & Employment Practice Group. His practice includes sensitive workplace investigations, high-profile trade secret and non-compete matters, wage-hour and discrimination class actions, Sarbanes-Oxley and other whistleblower protection claims, executive and other significant employment disputes, labor union controversies, and workplace safety litigation.

October 31, 2019 |
German Directory JUVE Recommends Frankfurt, Munich and Brussels Offices for 2019/2020 Edition

The German publication JUVE recommended Gibson Dunn’s Frankfurt, Munich and Brussels offices in the 2019/2020 edition of its annual directory.  The firm was recommended in the Brussels, Frankfurt and Munich regions and recognized in the Antitrust, Compliance Audits and Investigations, Corporate, M&A and Private Equity categories.

October 4, 2019 |
Gibson Dunn Ranked in the 2020 UK Legal 500

The UK Legal 500 2020 ranked Gibson Dunn in 15 practice areas and named seven partners as Leading Lawyers.  The firm was recognized in the following categories:

  • Corporate and Commercial: Corporate Tax
  • Corporate and Commercial: Equity Capital Markets – Mid-Large Cap
  • Corporate and Commercial: EU and Competition
  • Corporate and Commercial: M&A: upper mid-market and premium deals, £500m+
  • Corporate and Commercial: Private equity: transactions – high-value deals (£250m+)
  • Dispute Resolution: Commercial Litigation
  • Dispute Resolution: International Arbitration
  • Dispute Resolution: Public International Law
  • Human Resources: Employment – Employers
  • Projects, Energy and Natural Resources: Oil and Gas
  • Public Sector: Administrative and Public Law
  • Real Estate: Commercial Property – Hotels and Leisure
  • Real Estate: Commercial Property – Investment
  • Real Estate: Property Finance
  • Risk Advisory: Regulatory Investigations and Corporate Crime
The partners named as Leading Lawyers are Sandy Bhogal – Corporate and Commercial: Corporate Tax; Steve Thierbach – Corporate and Commercial: Equity Capital Markets; Ali Nikpay – Corporate and Commercial: EU and Competition; Philip Rocher – Dispute Resolution: Commercial Litigation; Cyrus Benson – Dispute Resolution: International Arbitration; Jeffrey Sullivan – Dispute Resolution: International Arbitration; and Alan Samson – Real Estate: Commercial Property – Investment and Real Estate: Property Finance. Claibourne Harrison has also been named as a Rising Star for Real Estate: Commercial Property – Investment. The guide was published on September 26, 2019. Gibson Dunn’s London office offers full-service English and U.S. law capability, including corporate, finance, dispute resolution, competition/antitrust, real estate, labor and employment, and tax.  Our lawyers advise international corporations, financial institutions, private equity funds and governments on complex and challenging transactions and disputes. Our London corporate practice is at the forefront of cross-border M&A, financing and joint venture transactions, including advising clients seeking to access U.S. and European capital markets.  Team members handle major domestic and multi-jurisdictional commercial cases before English, EU and Commonwealth courts, and have a wealth of experience in taking complex matters to trial.  Gibson Dunn’s London office was founded more than 30 years ago.  Our dynamic team includes many dual-qualified lawyers with extensive language skills.

September 20, 2019 |
Proposed CFIUS Regulations: The U.S. Remains Open for Business … but Read the Fine Print

Click for PDF On September 17, 2019, the U.S. Department of the Treasury issued over 300 pages of proposed regulations to implement the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), legislation that expanded the scope of inbound foreign investment subject to review by the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”). FIRRMA expanded—subject to the promulgation of these implementing regulations—the Committee’s jurisdiction beyond transactions that could result in foreign control of a U.S. business. The Committee's jurisdiction will now include non-passive but non-controlling investments, direct or indirect, in U.S. businesses involved in specified ways with critical technologies, critical infrastructure, or sensitive personal data (referred to as “TID U.S. businesses” for technology, infrastructure, and data) and certain real estate transactions. The comment period will conclude on October 17, 2019, and as required by FIRRMA, the final regulations will become effective no later than February 13, 2020. To date, only certain provisions of FIRRMA have been fully implemented. In late 2018, CFIUS launched a pilot program to require mandatory filings in higher risk “critical technology” investments. For the past year, the pilot program has served as a regulatory laboratory for the Committee—allowing it to experiment with the use of a short-form “declaration” and better assess the issues that arise in non-controlling but non-passive investments. Notably, the pilot program will remain in place for the foreseeable future, and the new proposed regulations will implement the remainder of the Committee’s expanded authority under FIRRMA. Other developments are still to come—including the publication of a list of excepted foreign countries from which certain investors will receive less scrutiny. Key developments are described below.

Covered Investments

  1. No Changes to the Critical Technologies Pilot Program. The proposed regulations leave the existing pilot program for critical technologies untouched. Notably, “critical technologies” is defined to include certain items subject to export controls and other existing regulatory schemes, as well as emerging and foundational technologies controlled pursuant to the Export Control Reform Act of 2018 (“ECRA”). Throughout the summer, several political and non-political leads at the Department of Commerce reported that we can expect new emerging technologies to be identified under specific Export Administration Regulations export control classification numbers (“ECCNs”) within weeks. However, no new emerging technologies ECCNs have been identified since Commerce issued its advanced notice of proposed rule-making (“ANPRM”) on the subject last fall. Commerce has also noted that it plans to release an additional ANPRM focused on foundational technologies in the coming weeks.
  2. Identification of Critical Infrastructure Sectors. CFIUS may review transactions related to U.S. businesses that perform specified functions—owning, operating, manufacturing, supplying, or servicing—with respect to critical infrastructure across subsectors such as telecommunications, utilities, energy, and transportation. Relying in part on the definition provided in the USA Patriot Act of 2001, the new regulations define “critical infrastructure” to include physical or virtual systems or assets the destruction or incapacitation of which would have a debilitating impact on U.S. national security. Previously, President Obama used this definition to identify 16 critical infrastructure sectors meriting special protection and assistance. CFIUS is more specific in its new regulations, listing 28 particular types of “covered investment critical infrastructure” that require additional investment protection. This list, provided in an Appendix to the new regulations, includes a range of technology and assets—from producers of certain steel alloys to industrial control systems used by interstate oil pipelines with specified diameters. However, only U.S. businesses that perform the specific functions matched to each particular type of infrastructure are TID U.S. businesses. For example, companies providing physical or cyber security to a crude oil storage facility would be TID U.S. businesses, but those that provide fencing around the facility or commercially available off-the-shelf cyber security software to the facility are not. The new proposed regulations also provide specific definitions for the listed “covered investment critical infrastructure” functions.
  3. Definition of “Sensitive Personal Data.” CFIUS may review transactions related to U.S. businesses that maintain or collect sensitive personal data of U.S. citizens that may be exploited in a manner that threatens national security. “Sensitive personal data” is defined to include ten categories of data maintained or collected by U.S. businesses that (i) target or tailor products or services to sensitive populations, including U.S. military members and employees of federal agencies involved in national security, (ii) collect or maintain such data on at least one million individuals, or (iii) have a demonstrated business objective to maintain or collect such data on greater than one million individuals and such data is an integrated part of the U.S. business’s primary products or services. The categories of data include types of financial, geolocation, and health data, among others. Genetic information is also included in the definition regardless of whether it meets (i), (ii), or (iii).
  4. Excepted Investors from Excepted Foreign States. Under the new regulations, certain foreign investors with ties to “excepted foreign states” will receive preferential treatment with respect to the review of covered investments. The proposed regulations create an exception from covered investments (but not transactions that could result in control) for investors based on their ties to certain countries identified as “excepted foreign states,” and their compliance with certain laws, orders, and regulations (including U.S. sanctions and export controls). An investor’s nationality is not dispositive—the proposed regulations identify criteria that a foreign person must meet in order to qualify for excepted investor status. Among these, investors cannot qualify for and may lose their excepted status if they are parties to settlement agreements with OFAC or BIS, or are debarred by the Department of State, for sanctions or export control violations. This will have a significant impact on foreign companies who run afoul of U.S. sanctions and export control regulations—the potential loss of this status for respondents might have the unintended effect of deterring disclosures to OFAC and BIS by those concerned about the loss of excepted investor status.

A list of factors will be posted on the Department of the Treasury’s website outlining what the Committee will consider when making a determination on whether certain investors from a foreign state will be excepted from CFIUS scrutiny. Such factors will include whether the state has established and is effectively utilizing a robust process to assess foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security. The proposed regulations indicate that excepted states will be identified by the CFIUS Chairperson with the agreement of two-thirds of the voting members of the Committee, beginning two years after the effective date of the final rule (most likely February 2022). At the outset, the foreign state exception will likely apply to allies with whom the United States shares intelligence data under the multilateral UKUSA Agreement—Australia, Canada, New Zealand and the United Kingdom.

  1. Mandatory Filing Requirement. The proposed regulations implement FIRRMA’s requirement for mandatory declarations for certain transactions where a foreign government has a substantial interest, in addition to the mandatory filing requirement for certain investments in U.S. critical technology companies under the pilot program. The submission of a declaration is not required with respect to investments by qualified investment funds.Notably, a majority of the declarations filed under the pilot program have been pushed into the standard review process, meaning that the streamlined “light” filing actually resulted in a longer review process for the parties involved. Anecdotal evidence suggests that fewer than 10 percent of cases filed under the pilot program have been decided on the basis of the short-form declaration alone, despite a relatively low volume of filings. Numerous transactions have required the submission of the full notice, and it has been difficult for the intelligence community to complete their full assessment within the allocated 30 days.

Real Estate Transactions

FIRRMA expanded the scope of transactions subject to CFIUS review to include the purchase or lease by a foreign person of real estate that “is, located within, or will function as part of, an air or maritime port…”; “is in close proximity to a United States military installation or another facility or property of the United States Government that is sensitive for reasons relating to national security;” “could reasonably provide the foreign person the ability to collect intelligence on activities being conducted at such an installation, facility, or property; or;” “could otherwise expose national security activities at such an installation, facility, or property to the risk of foreign surveillance.” Although FIRRMA sought to codify the Committee’s standard practice of examining such risks, it punted on the task of defining such terms. As a result, the proposed regulations resolve a number of uncertainties in FIRRMA with respect to how national security risks associated with real estate transactions will be ascertained.
  1. Property Rights that Trigger CFIUS Review. The proposed regulations clarify that—subject to certain exceptions for single housing units and real estate in urbanized areas—real estate transactions subject to the Committee’s review include the purchase or lease by, or a concession to, a foreign person of certain real estate in the United States that affords the foreign person three or more of the following property rights: to physically access; to exclude; to improve or develop; or to affix structures or objects.
  2. Covered Real Estate. Coverage is focused on transactions in and/or around specific airports, maritime ports, and military installations. The relevant military installations are listed by name and location in an appendix to the proposed regulations. The relevant airports and maritime ports are on lists published by the Department of Transportation. Notably, such real estate will include properties located within “close proximity” of any military installation identified in Appendix A, parts 1 and 2, “extended range” of any military installation identified in part 2, and any county or geographic area identified in connection with a military installation set forth in part 3 of Appendix A.
  3. Definition of “Close Proximity” and “Extended Range.” The proposed rule defines close proximity as “the area measured outward from the boundary of the relevant installation or other facility or property.” The close proximity definition applies with respect to most of the military installations described in the proposed rule and in particular, those identified in the list in parts 1 and 2 of Appendix A. “Extended range” is defined as “the area that extends 99 miles outward from the outer boundary of close proximity” but, where applicable, “no more than 12 nautical miles seaward from the coastline of the United States.” The extended range definition applies with respect to military installations described in part 2 of Appendix A.
  4. Exceptions for Certain Investors and Foreign States. The proposed rule sets forth a narrow definition of excepted real estate investor in the interest of protecting national security, in light of increasingly complex ownership structures, and to prevent foreign persons from circumventing CFIUS’s jurisdiction. Thus, the criteria specified in § 802.216 require that a foreign person have a substantial connection (e.g., nationality of ultimate beneficial owners and place of incorporation) to one or more particular foreign states in order to be deemed an excepted real estate investor. Note that foreign persons who have violated, or whose parents or subsidiaries have violated, certain U.S. laws will lose their excepted investor status under these provisions.
  5. Urban Cluster Exception. FIRRMA requires that real estate in “urbanized areas,” as defined by the Census Bureau in the most recent U.S. census, be excluded from CFIUS’s real estate jurisdiction except as otherwise prescribed by the Committee in regulations in consultation with the Secretary of Defense. The urbanized area exclusion applies to covered real estate everywhere except where it is in “close proximity” to a military installation or another sensitive facility or property of the U.S. Government as listed in appendix A, or is, is within, or will function as part of, an airport or maritime port.
  6. Intersection of Real Estate and Other Covered Transactions or Investments. The proposed regulations clarify that real estate transactions that are also subject to CFIUS’s existing and proposed regulations regarding control transactions and non-controlling investments involving U.S. businesses should be analyzed under those regulations.
  7. No Mandatory Filing Requirement. The transactions described in the proposed rule on real estate are not subject to a mandatory declaration requirement. As a general matter, parties to a covered real estate transaction will decide whether to file a notice voluntarily or submit a declaration to CFIUS.

CFIUS Filings

  1. Voluntary Short Form Declarations as Alternative to Notice. The proposed regulations provide a short-form declaration as an alternative to the Committee’s traditional voluntary notice. To date, declarations have only been available under the pilot program. Declarations will allow parties to submit basic information regarding a transaction that should generally not exceed five pages in length. The Department of the Treasury will accept declarations submitted by parties using a standard template form which will be available on the Department of the Treasury’s website by the time the final regulations become effective. The Committee will have 30 days to assess a covered transaction that is the subject of a declaration (as opposed to the 45-day initial review period available for notices).
  2. No Fees to Date. The Department of the Treasury will publish separate proposed regulations regarding fees at a later date.
  3. 5 p.m. Eastern Deadline.  The new regulations impose a 5 p.m. EST filing deadline—a seemingly small point that could have a substantial impact in a cross-border deal involving players in multiple time zones.

Regulatory Framework

The proposed regulations would replace the current regulations found at part 800 of title 31 of the Code of Federal Regulations (31 C.F.R. part 800) and implement the changes that FIRRMA made to CFIUS’s jurisdiction and process with respect to transactions that could result in foreign control of any U.S. business, as well as certain non-controlling “other investments” that afford a foreign person certain access, rights, or involvement in certain types of U.S. businesses. These proposed regulations would establish a new part 802 of title 31 of the C.F.R. and implement the authority FIRRMA provided to CFIUS to review the purchase or lease by, or concession to, a foreign person of certain real estate in the United States. The proposed regulations do not at this time modify the regulations currently at 31 C.F.R. part 801, which set forth the scope of, and procedures for, a pilot program to review certain transactions involving foreign persons and critical technologies. CFIUS continues to evaluate the pilot program.
The following Gibson Dunn lawyers assisted in preparing this client update: Judith Alison Lee, Jose Fernandez, Adam M. Smith, Stephanie Connor, Chris Timura and R.L. Pratt. Gibson Dunn's lawyers are available to assist in addressing any questions you may have regarding the above developments.  Please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following leaders and members of the firm's International Trade practice group: United States: Judith Alison Lee - Co-Chair, International Trade Practice, Washington, D.C. (+1 202-887-3591, jalee@gibsondunn.com) Ronald Kirk - Co-Chair, International Trade Practice, Dallas (+1 214-698-3295, rkirk@gibsondunn.com) Jose W. Fernandez - New York (+1 212-351-2376, jfernandez@gibsondunn.com) Marcellus A. McRae - Los Angeles (+1 213-229-7675, mmcrae@gibsondunn.com) Adam M. Smith - Washington, D.C. (+1 202-887-3547, asmith@gibsondunn.com) Christopher T. Timura - Washington, D.C. (+1 202-887-3690, ctimura@gibsondunn.com) Ben K. Belair - Washington, D.C. (+1 202-887-3743, bbelair@gibsondunn.com) Courtney M. Brown - Washington, D.C. (+1 202-955-8685, cmbrown@gibsondunn.com) Laura R. Cole - Washington, D.C. (+1 202-887-3787, lcole@gibsondunn.com) Stephanie L. Connor - Washington, D.C. (+1 202-955-8586, sconnor@gibsondunn.com) Henry C. Phillips - Washington, D.C. (+1 202-955-8535, hphillips@gibsondunn.com) R.L. Pratt - Washington, D.C. (+1 202-887-3785, rpratt@gibsondunn.com) Audi K. Syarief - Washington, D.C. (+1 202-955-8266, asyarief@gibsondunn.com) Scott R. Toussaint - Washington, D.C. (+1 202-887-3588, stoussaint@gibsondunn.com) Europe: Peter Alexiadis - Brussels (+32 2 554 72 00, palexiadis@gibsondunn.com) Nicolas Autet - Paris (+33 1 56 43 13 00, nautet@gibsondunn.com) Attila Borsos - Brussels (+32 2 554 72 10, aborsos@gibsondunn.com) Patrick Doris - London (+44 (0)207 071 4276, pdoris@gibsondunn.com) Sacha Harber-Kelly - London (+44 20 7071 4205, sharber-kelly@gibsondunn.com) Penny Madden - London (+44 (0)20 7071 4226, pmadden@gibsondunn.com) Steve Melrose - London (+44 (0)20 7071 4219, smelrose@gibsondunn.com) Benno Schwarz - Munich (+49 89 189 33 110, bschwarz@gibsondunn.com) Michael Walther - Munich (+49 89 189 33-180, mwalther@gibsondunn.com) Richard W. Roeder - Munich (+49 89 189 33-160, rroeder@gibsondunn.com) © 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

September 9, 2019 |
Law360 Names Seven Gibson Dunn Lawyers as 2019 Rising Stars

Seven Gibson Dunn lawyers were named among Law360’s Rising Stars for 2019 [PDF], featuring “attorneys under 40 whose legal accomplishments transcend their age.”  The following lawyers were recognized: Washington D.C. partner Chantale Fiebig in Transportation, San Francisco partner Allison Kidd in Real Estate, Washington D.C. associate Andrew Kilberg in Telecommunications, New York associate Sean McFarlane in Sports, New York partner Laura O’Boyle in Securities, Los Angeles partner Katherine Smith in Employment and Century City partner Daniela Stolman in Private Equity. Gibson Dunn was one of three firms with the second most Rising Stars. The list of Rising Stars was published on September 8, 2019.

August 15, 2019 |
Gibson Dunn Lawyers Recognized in the Best Lawyers in America® 2020

The Best Lawyers in America® 2020 has recognized 158 Gibson Dunn attorneys in 54 practice areas. Additionally, 48 lawyers were recognized in Best Lawyers International in Belgium, Brazil, France, Germany, Singapore, United Arab Emirates and United Kingdom.

July 8, 2019 |
UK Take Privates

Click for PDF Bloomberg (here) recently reported that PE firms are increasingly scoping out take privates in the UK and “are fed up with waiting for Brexit”.  That is consistent with our experience and current mandates, and the recent deals for Merlin Entertainments and BCA Marketplace provide further evidence. The UK takeover regime brings particular challenges to take private transactions which differ from the US in a number of significant respects.  We thought it timely therefore to send out a reminder of a few of the early stage issues described in our client alert last year explaining how they can be overcome. 1.  Who can management talk to? Senior executives owe duties to act in the best interests of their companies and so need to tread carefully.  However, they are free to have exploratory conversations with potential bidders provided they comply with a few basic principles:

  • they need to be sure they have internal authority and support – keeping the Chairman of the Board informed is usually sufficient during the early stages. Notably in the UK, the role of the Chairman and the CEO are invariably separate roles.
  • they must not disclose any confidential information to third parties – but usually there will be enough public information to allow for preliminary discussions.
  • the number of people they speak to should be limited, both to minimise the risk of a leak and to ensure compliance with the Panel’s rule that there should be no more than six “live” discussions at any one time.
  • advice must be taken from financial advisers and lawyers prior to engaging in any discussion around management incentive arrangements or any possible equity participation in the bidder.
Once a bidder is willing to submit a written proposal to the target company, the Chairman will inform the entire board and an independent committee of the board, excluding anyone who might be involved with the bidder, will be established.  The independent committee will determine what information can be disclosed to bidders and management have an obligation to share with the board any information they disclose to potential bidders.  It should be remembered that any information disclosed to one bidder has to be disclosed to other potentially less welcome bidders. 2.  Diligence, costs and timing The due diligence process will be run by the independent committee so management should avoid disclosing any non-public information without prior approval from the independent committee.  Target companies are not permitted to underwrite bidders’ costs although if a white knight bid is made in response to a hostile offer then an inducement fee, capped at 1%, is possible. There is also a rule (“Put up or shut up”) that requires a formal offer to be announced not later than 28 days following the first public announcement of a possible offer.  However, if discussions are ongoing it is usually possible to obtain an extension. 3.  Management and other significant shareholdings Sometimes management will own shares in the target company which are material in the context of an offer.  Under the Takeover Code all target shareholders have to be treated equally.  Therefore, if management wish to roll over their shares into shares of the bidder then either (i) all target shareholders must be offered the same opportunity to take equity in the bidder (which may result in the financial sponsor having to accommodate unwanted minority shareholders in the bidder) or (ii) independent shareholder approval must be obtained to management being treated differently.  The other structural alternative is for the Takeover Panel to agree that those “rolling over” can be treated as joint offerors with the financial sponsor – this is not an easy test to satisfy.  For these reasons great care needs to be taken before any discussions take place around management’s future interests in the bidder. It is worth noting that if management own a material interest in the target, a financial sponsor may be able to secure significant deal certainty by negotiating with management either a hard irrevocable undertaking to accept the offer or a hurdle irrevocable (under which management can only accept an alternative offer if the second offer is circa 15% higher than the initial offer). 4.  No financing condition and no MAC It must be remembered that in the UK a formal offer can only be made when there are “certain funds” in place to satisfy the cash consideration.  Financing conditions are not permitted and, for all practical purposes, there can be no MAC condition either.  The only substantive conditions that are permitted are regulatory and the requirement for acceptances of up to 90% which can be waived down 50% plus one.  This means that all financing needs to be in place on an unconditional basis at the time the offer is announced. 5.  Finally: “It’s good to Talk” – Should we consult the Panel? The UK Panel on Takeovers and Mergers is responsible for administering the Takeover Code which govern takeovers of UK companies.  The Panel Executive (the Panel), which is primarily staffed by current or former corporate finance practitioners, regulates bids on a day-to-day basis. The UK system of takeover regulation is principles-based. The Panel will seek to ensure that the six General Principles (here) which form the cornerstone of the Code are respected in all cases, and an understanding of the principles is essential to deftly navigate the regime. Consultation with regulators on takeover bids is not typical nor always helpful under many regulatory regimes. In the UK by contrast, consultation often will prove to be helpful. Derogations, dispensations and waivers are possible from many Code rules subject to consultation with the Panel.  The Panel responds on a timely basis to queries and is available for consultation on an "out of office hours" emergency basis. PS The Political Environment It is also clear that the growth in take privates will bring private equity more into the public eye.  Government and the wider political community are increasingly focusing their attention on private equity.  While policy thinking is incomplete, it would not be surprising if at some point private equity hits the front pages again and the old chestnuts of leverage, thin capitalisation and carried interest attract the attention of legislators.
Gibson Dunn’s lawyers are available to assist with any questions you may have regarding these issues.  For further information, please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Mergers and Acquisitions and Private Equity practice groups, or the following lawyers in London: Thomas M. Budd (+44 (0)20 7071 4234, tbudd@gibsondunn.com) Gregory Campbell (+44 (0)20 7071 4236, gcampbell@gibsondunn.com) Jonathan Earle (+44 (0)20 7071 4211, jearle@gibsondunn.com) Charlie Geffen (+44 (0)20 7071 4225, cgeffen@gibsondunn.com) Chris Haynes (+44 (0)20 7071 4238, chaynes@gibsondunn.com) James R. Howe (+44 (0)20 7071 4214, jhowe@gibsondunn.com) Anna Howell (+44 (0)20 7071 4241, ahowell@gibsondunn.com) Jeremy Kenley (+44 (0)20 7071 4255, jkenley@gibsondunn.com) Amy Kennedy (+44 (0)20 7071 4283, akennedy@gibsondunn.com) Mitri Najjar (+44 (0)20 7071 4262, mnajjar@gibsondunn.com) Selina Sagayam (+44 (0)20 7071 4263, ssagayam@gibsondunn.com) Alan Samson (+44 (0)20 7071 4222, asamson@gibsondunn.com) Mark Sperotto (+44 (0)20 7071 4291, msperotto@gibsondunn.com) Nigel Stacey (+44 (0)20 7071 4201, nstacey@gibsondunn.com) Steve Thierbach (+44 (0)20 7071 4235, sthierbach@gibsondunn.com) Nicholas Tomlinson (+44 (0)20 7071 4272, ntomlinson@gibsondunn.com) © 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

June 28, 2019 |
Best Lawyers in the United Kingdom 2020 Recognizes 11 Gibson Dunn Partners

Best Lawyers in the United Kingdom 2020 has recognized 11 Gibson Dunn partners as leading lawyers in their respective practice areas: Cyrus Benson – International Arbitration; Thomas Budd – Real Estate Finance; James Cox – Employment Law; Patrick Doris – International Arbitration; Charlie Geffen – Private Equity Law; Penny Madden – International Arbitration; Mitri Najjar – Corporate Law; Philip Rocher – Litigation; Alan Samson – Finance Services, Real Estate Finance and Real Estate Law; Jeffrey Sullivan – International Arbitration; and Steve Thierbach – Capital Markets Law. The list was published on June 28, 2019.

June 28, 2019 |
Best Lawyers in Germany 2020 Recognizes 14 Gibson Dunn Attorneys

Best Lawyers in Germany 2020 has recognized 14 Gibson Dunn attorneys as leading lawyers in their respective practice areas. In Frankfurt: Jens-Olrik Murach – Competition/Antitrust Law and Litigation; Dirk Oberbracht – Corporate Law, Mergers and Acquisitions Law and Private Equity Law; Wilhelm Reinhardt – Mergers and Acquisitions Law; and Finn Zeidler – Arbitration and Mediation and Litigation. In Munich: Peter Decker – Banking and Finance Law and Private Equity Law; Lutz Englisch – Corporate Law, Mergers and Acquisitions Law and Private Equity Law; Ferdinand Fromholzer – Corporate Law, Mergers and Acquisitions Law and Private Equity Law; Kai Gesing – Litigation; Markus Nauheim – Corporate Law and Mergers and Acquisitions Law; Hans Martin Schmid – Real Estate Law; Sebastian Schoon – Banking Law; Benno Schwarz – Corporate Governance & Compliance Practice, Corporate Law, Criminal Defense and Mergers and Acquisitions Law; Michael Walther – Competition/Antitrust Law; and Mark Zimmer Corporate Governance & Compliance Practice, Criminal Defense, Labor and Employment Law and Litigation. The list was published on June 28, 2019.  

July 1, 2019 |
Best Lawyers in France 2020 Recognizes 16 Gibson Dunn Attorneys

Best Lawyers in France 2020 has recognized 16 Gibson Dunn attorneys as leading lawyers in their respective practice areas: Ahmed Baladi – Information Technology Law, Intellectual Property Law, Privacy and Data Security Law and Telecommunications Law; Nicolas Baverez – Administrative Law, Public Law and Regulatory Practice; Maïwenn Béas – Public Law; Amanda Bevan-de Bernède – Banking and Finance Law and Investment; Eric Bouffard – International Arbitration; Bertrand Delaunay – Mergers and Acquisitions Law and Private Equity Law; Jérôme Delaurière – Tax Law; Jean-Pierre Farges – Arbitration and Mediation, Banking and Finance Law, Insolvency and Reorganization Law and Litigation; Pierre-Emmanuel Fender - Insolvency and Reorganization Law; Benoît Fleury – Corporate Law; Bernard Grinspan – Corporate Law and Information Technology Law; Ariel Harroch – Corporate Law, Mergers and Acquisitions Law, Private Equity Law and Tax Law; Patrick Ledoux – Corporate Law; Vera Lukic – Information and Technology Law; Judith Raoul-Bardy – Corporate Law; and Jean-Philippe Robé – Banking and Finance Law, Corporate Law and Finance Law. The list was published on July 1, 2019.  

June 20, 2019 |
Gibson Dunn Transactions Named Private Equity Deal of the Year and Consumer, Retail, Food & Beverage Deal of the Year by The Deal

The Deal named “Veritas Capital Fund Management LLC and Evergreen Coast Capital Corp. take athenahealth Inc. private” as its Private Equity Deal of the Year. Gibson Dunn was counsel to the investor Group. The Gibson Dunn team included New York partners Richard Birns, Aaron Adams and Eric Sloan. The Deal also recognized Gibson Dunn when naming “PepsiCo Inc. (PEP) acquires carbonated beverage specialist SodaStream International Inc.” as its Consumer, Retail, Food & Beverage Deal of the Year. Gibson Dunn represented PepsiCo Inc. and the team was led by New York partners Barbara Becker and Saee Muzumdar. The awards were announced on June 20, 2019. Gibson, Dunn & Crutcher’s Private Equity Practice represents many of the largest and most active financial sponsors, sovereign wealth funds and other investor groups around the world. We provide a full-service solution to our private equity clients.  We handle deals ranging from venture and growth capital transactions through multibillion-dollar club deals.  In close coordination with lawyers in other Gibson Dunn practice areas, we provide a comprehensive service including: due diligence and compliance; deal negotiation, documentation and execution; tax structuring; acquisition finance; corporate governance and management equity. Gibson, Dunn & Crutcher’s Mergers and Acquisitions Practice Group is an international leader in mergers, acquisitions, divestitures, spin-offs, proxy contests and joint ventures.  Our lawyers deliver sophisticated judgment, technical excellence, creative solutions, and vast market knowledge to each transaction entrusted to us. Our M&A clients include public and private companies, ranging from Fortune 100 and multinational corporations to smaller companies; private equity firms; boards of directors and special committees; selling shareholders; management teams; and financial advisors.  Clients also regularly enlist Gibson Dunn to provide advice regarding takeover preparedness and the implementation of defensive measures.