March 2013 Issue

Financier Worldwide Magazine

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Planning for 'black swan' events

Whether environmental, economic, political, societal, or technological in nature, ‘black swan’ events are almost impossible to predict and often bring massive repercussions. In an age of economic and political interconnectedness, unforeseen events, even in remote locations, can cause... 



Cautiously optimistic – the M&A outlook for 2013

Across the markets, mergers and acquisitions (M&A) activity in 2012 was subdued, and it is fair to say that the sluggish nature of the markets last year was caused by a number of factors. The eurozone crisis rumbled on, destabilising the region’s markets. Growth in the emerging...

Comcast completes early acquisition of NBCUniversal

The M&A market is showing signs of revitalisation in 2013. So far this year we have seen Dell Inc. accept a $24.4bn leveraged buyout, UK based cable giant Virgin media agree to be acquired by Liberty Media for $16bn, and Time Warner supposedly enter talks with publisher Meredith, with...

Anheuser-Busch InBev forced to revise Modelo deal

The world’s largest brewer, Anheuser-Busch InBev (AB InBev), was forced to revise the terms of its $20.1bn takeover of Mexican brewery Grupo Modelo in February after falling foul of the US Department of Justice’s antitrust agency. AB InBev had initially agreed to acquire...

UK zombies shuffle onwards

The undead have enjoyed something of a renaissance in recent years. After virtually disappearing from the mainstream consciousness for decades, we are now fully accustomed to seeing zombies in video games, on our television screens and in cinemas once again. However, despite whatever the...

Cultural revolution at Barclays

“We get it. The old ways weren’t the right way to behave nor did they deliver the right results – for banks themselves or for wider society,” said Anthony Jenkins, the new chief executive officer of Barclays Bank PLC. With this contrite admission Mr Jenkins ushered in a new era for the...




Infrastructure and project finance

THE MODERATOR: Geoffrey Haley, IPFA. THE PANELLISTS: Ben Cattaneo, Accenture; Munish Sharma, Dua Associates; Julien Reidy, Hogan Lovells; and Tim Burbury, King & Spalding.

As increasing economic and population growth drive global infrastructure requirements, investors and developers face a range of challenges. Among these are price and cost volatility, currency concerns, and the uncertainty brought by political upheaval and natural disasters. Meanwhile, due...




Distressed M&A and investing

Investors have been presented with a wealth of opportunities resulting from ongoing turmoil in the  financial markets. Cash-rich companies and investment funds have a wide range of acquisition options at reduced valuations. However, the...

FORUM: Outlook for distressed M&A and investing in 2013

FW moderates a discussion about distressed M&A and investing in 2013 between Jay J. Rittberg at AIG, Partha Kar at Kirkland & Ellis International LLP, and Daniel F. Fiorillo at Otterbourg, Steindler, Houston & Rosen...

The changing face of asset sales in Chapter 11

Otterbourg, Steindler, Houston & Rosen, P.C. Only a handful of sections contained in the United States Bankruptcy Code are so quintessential to the fabric of the reorganisation process that even a slight change in either their interpretation or implementation can directly affect the outcome of almost every Chapter 11 case. Two such...

Indemnification solutions for distressed deals 

AIG In M&A transactions, buyers and sellers must agree on which party should bear the risk of unexpected loss in the transferred business after the deal closes. A seller will typically make representations about the business being sold and a buyer will typically require some...

Treatment of make-whole provisions in AMR Corp. Chapter 11 case raises new concerns for lenders

Skadden, Arps, Slate, Meagher & Flom LLP Make-whole premiums are intended to compensate financiers, typically bondholders under an indenture, for the loss of future interest payments in situations where, due to declining market interest rates, a debtor elects to repay its debt obligations early. Without such protection,...

Recent lessons on management compensation at various stages of the Chapter 11 process

Kirkland & Ellis LLP Setting compensation for senior management can be among the most contentious issues facing companies reorganising under Chapter 11 of the US Bankruptcy Code. Corporate debtors argue that such compensation—often in the form of base salary, bonuses, or stock of the reorganised company –...

Blowing in the wind

Siguler Guff & Company, L.P. The global financial crisis of 2008 (the ‘GFC’) impacted financial market theory and continues to challenge longstanding beliefs. The halcyon assumptions of allocation models and the benefits of diversification across asset classes came under direct scrutiny as correlations broke down and...

Zombies need not be zombies

Bryan Mansell & Tilley LLP Much publicity has been given to so-called zombie companies; companies in ‘suspended animation’ struggling to stay alive in a difficult market place, over leveraged, with limited liquidity and with no access to finance, their existence dependent on continuing low interest rates and...

The pari passu clause as applied in Argentina sovereign bonds litigation

Marval, O’Farrell & Mairal In a recent case US Courts gave a broad interpretation to the ‘pari passu’ clause which requires 100 percent of the principal and interest of defaulted Argentine sovereign bonds held by plaintiffs to be paid concurrently or in advance of amounts paid by Argentina under the exchange bonds...




mergers & acquisitions

MetLife to acquire BBVA’s Provida for $2bn

MetLife Inc. announced in February that it had entered into a definitive agreement to purchase Chilean pension manager AFP Provida SA from the Spanish bank Banco Bilbao Vizcaya Argentaria (BBVA). The acquisition of Provida will cost MetLife approximately $2bn, which the company will...

Cisco acquires Israeli software firm

The world’s largest maker of networking equipment, Cisco Systems Inc, continued an aggressive expansion plan in January when it announced its intent to acquire privately-held software firm Intucell Systems. The deal for Israel-based Intucell will see Cisco pay roughly $475m...

private equity & venture capital

CEO and partners take Dell Inc. private

Michael Dell, the founder, chairman and chief executive of Dell Inc., has entered into a definitive merger agreement to reacquire his company for $24.4bn. The acquisition will see the company taken private by Mr Dell, along with private equity firm and technology investors...

Ethos Private Equity raises $800m African fund

After two years of marketing and fundraising, Ethos Private Equity Ltd., South Africa’s oldest private equity firm, exceeded expectations in January when it announced it had raised $800m for its latest fund. Ethos’ Fund VI is one of the largest Africa-focused private...

bankruptcy & corporate restructuring

Wanxiang wins US approval for A123 deal

After satisfying the national security concerns of the Committee on Foreign Investment in the United States (CFIUS), Wanxiang America Corp, the US subsidiary of the Wanxiang Group, won approval for its $257m acquisition of insolvent US firm A123 Systems Inc in late January. The CFIUS...

Game over for Atari US

After an illustrious, trailblazing, and often problematic 30 years in the video games industry, Atari Inc., the US based operations of Atari SA, filed for Chapter 11 bankruptcy protection in late January. Atari Inc. and three of its affiliated companies, Atari Interactive...




Intellectual Property

Supreme Court to decide legality of reverse-payment settlements in Paragraph IV disputes

Fitzpatrick, Cella, Harper & Scinto The long simmering battle over the legality of so-called ‘reverse-payment’ settlements in pharmaceutical patent cases has reached the US Supreme Court. In general, settlements of patent litigation take a variety of forms, including licence or ex¬clusion agreements, and can involve...

Derivation of inventions: new proceeding under the AIA will expand ways patents may be attacked

K&L Gates LLP Historically, the US has been an outlier when it comes to certain aspects of its’ patent laws, in large part due to traditions predating the Constitution. In 2012, Congress enacted the America Invents Act (AIA) which provided an overhaul of the patent laws, attempting to bring the US...

Appellate review of the AIA’s new patent-challenge proceedings

Finnegan, Henderson, Farabow, Garrett & Dunner, LLP The Leahy-Smith America Invents Act (AIA) creates two important new procedures for challenging US patents at the US Patent and Trademark Office (PTO): post-grant review (PGR) and inter partes review (IPR). The AIA also establishes a new administrative body, the Patent Trial and...

R.I.P. – Controlling potentially fatal patent risks

ClearViewIP While there has been an increase in the number of litigation cases in the last 10 years, it could, in part, simply be a logical consequence of the significant growth of granted patents and applications filed by companies (IPWatchdog, ‘Patent Litigation Statistics...


Finance & Investment

Private funds and the new CFTC paradigm

Jones Day A hallmark of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) is its emphasis on transparency and accountability in the financial system. Through the implementation of regulations over the past two-and-a-half years since the adoption of Dodd-Frank, the US...

Will the United States regulation of derivatives apply to non-US parties?

Morgan, Lewis & Bockius LLP In 2010 the US enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) which, in part, was designed to completely transform the over-the-counter derivative market. The law charged the US Commodity Futures Trading Commission, the US Securities and Exchange...

Important regulation in the private equity industry in Luxembourg

MNKS In 2013, the private equity industry in Luxembourg will be exposed to the most important regulation it has ever faced: the implementation of Directive 2011/61/EU of 8 June (the ‘AIFM Directive’). The AIFM Directive was approved by the EU Parliament on 20 November 2010 after...

Intercompany reconciliation – automating the last bastion of manual processes

Fiserv With the finance industry fighting to regain the trust of shareholders, robust internal financial controls are now more important than ever. Automation has long been a hot topic for organisations, with processes from invoicing and payroll to system updates all being moved away from...




Fraud & Corruption

The Foreign Corrupt Practices Act: not just a US company concern

CohnReznick LLP Over the past five years the Securities and Exchange Commission and the US Department of Justice (DOJ) have ramped up their enforcement of the Foreign Corrupt Practices Act (FCPA) of 1977. From 2008 through to 2010 the DOJ prosecuted more FCPA cases than in the previous 20 years combined....

Exterritorial effectiveness of the UK Bribery Act und the US FCPA in Russia

Rödl & Partner Russia, notwithstanding its geographical remoteness and the difference between its legal system and those of the UK and the US, is also within the scope of legal rules of the latter two countries. This conclusion was made on the basis of the FCPA paragraph 78-dd 1(g)...

The territorial scope of money laundering powers

CMS Cameron McKenna Last year, the Supreme Court handed down its judgment in Perry and others v Serious Organised Crime Agency. The judgment provides valuable guidance on the extra-territorial effect of the powers under the Proceeds of Crime Act 2002 (POCA). The Court ruled that the...



Bryan Mansell & Tilley LLP


CMS Cameron McKenna

CohnReznick LLP

Finnegan, Henderson, Farabow, Garrett & Dunner, LLP


Fitzpatrick, Cella, Harper & Scinto

Jones Day

K&L Gates LLP

Kirkland & Ellis LLP

Marval, O’Farrell & Mairal


Morgan, Lewis & Bockius LLP

Otterbourg, Steindler, Houston & Rosen, P.C.

Rödl & Partner

Siguler Guff & Company, L.P.

Skadden, Arps, Slate, Meagher & Flom LLP

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