The competing offers for NYSE Euronext: the principal law firms

8 April 2011 — We have received a mountain of emails asking about the competing NYSE Euronext deals so we thought we’d provide a summary.

Deutsche Boerse made the first offer.  Under that deal Deutsche Boerse shareholders are set to own 60 percent of the combined company with NYSE Euronext shareholders taking a 40 percent stake. 

In the second offer, NASDAQ OMX Group and ICE would make an outright acquisition of NYSE Euronext. 

NASDAQ OMX has Shearman & Sterling as legal counsel for this transaction and ICE has Sullivan & Cromwell. 

Deutsche Boerse has Linklaters, its longstanding outside counsel.

Wachtell Lipton has the lead attorney role for NYSE Euronext. 

Meanwhile, on the Deutsche Boerse side, Benelux firm Stibbe is advising on corporate issues and Cleary Gottlieb is advising on EU competition issues.

This Deutsche Boerse/NYSE Euronext transaction is more complex because it will require teams devoted to a number of specialties: corporate, antitrust, Hart-Scott-Rodino.   There are lawyers for regulatory, tax matters, and litigation plus separate lawyer teams of similar specialties in Germany and/or Brussels for EU issues.  It all grows exponentially from there. Each of these disciplines will be needed in the other jurisdictions where these businesses operate (France, Holland, Belgium and Portugal, to name a few). 

With cases of this magnitude antitrust counsel will first need to complete the compilation of documents responsive to Item 4(c) of the HSR filing. This is usually the first point of entry for subjective review teams.  For those Posse List members that have worked on large transactions of this sort, you know that clients often assemble 10+ member contract attorney teams to do the 4(c) review.

To refresh your memories, Item 4(c) asks for “… all studies, surveys, analyses and reports which were prepared by or for any officer(s) or director(s) … for the purpose of evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into product or geographic markets….”   So 4(c) documents may include relatively brief and informal e-mail communications in addition to more formal reports analyzing the proposed merger. 

Consequently, given the necessity of searching a client’s electronic files for 4(c) documents, the 4(c) search often represents the antitrust lawyer’s first opportunity gain a preliminary understanding of the location, volume, nature, and accessibility of the client’s electronic data.

All the firms mentioned above who are handling the antitrust/HSR isssues have assembled “response teams” that will start with the 4(c) and then move on to manage the process of identifying and gathering electronic documents as necessary throughout the merger review process.  

As far as who is involved among the U.S. contract attorney staffing agencies, we have only heard rumors.   And a deal is obviously not close to being set.  But we know a fair amount of work has begun on the European side of the Deutsche Boerse offer via news through our European affiliate.  When we have definitive information, we’ll post it.   But given these days it seems there are too many agencies chasing too little work and there will be a boatload of prime law firms involved in the NYSE Euronext deal no matter who wins, we suspect all 85+ agencies that staff DC/NYC projects will have their snouts in the trough when a final deal moves forward.

For some background on these deals, Deutsche Boerse/NYSE Euronext produced a Powerpoint summary which you can access by clicking here.

For information on the NASDAQ/ICE offer, Nasdaq/ICE also did a Powerpoint  which you can access by clicking here.  

And if you really want get into the nuts & bolts of the Deutsche Börse/New York Stock Exchange agreement and understand the complexity of the matter you can read the 800+ page F-4 filed yesterday by clicking here.  

For some good summaries from the Wall Street Journal click here.