By Leslie A. Gordon
The convergence of technology, venture capital, patent and antitrust laws raises challenging legal issues unique to corporate lawyers handling West Coast mergers and acquisitions. The law school is tackling those issues during its first annual conference on Antitrust, Governance, M&A in 2015: Challenges and Conundrums for the West Coast, on Fri., Jan. 23.
The sold-out, invitation-only crowd of 200 attendees will include investment bankers, regulators, law firm partners and in-house lawyers. The conference is the brainchild of Professor Steven Davidoff Solomon, who sought to provide a forum for thought leaders to discuss the “different negotiation atmosphere, different legal issues and different kinds of companies” involved in West Coast M&A deals. “There’s no other type of forum like it,” said Solomon, who writes a weekly column for The New York Times as the Deal Professor.
For venture-backed technology companies, “a merger or acquisition usually represents the cash-out moment for the venture capitalist, triggering distinct legal challenges,” Robert Bartlett said. The Berkeley Law professor and faculty director of the Berkeley Center for Law and Business (BCLB) will serve on the panel about private company M&A issues.
Bartlett described the legal challenges when venture capitalists serve on a company’s board of directors. “The M&A transaction may benefit them, which raises some difficult fairness issues and questions about fiduciary duties to common stockholders,” Bartlett said, whose research focuses on the intersection of finance and business law. “It’s a murky area for VCs and their advisors when they negotiate M&A agreements.” Conference participants will be discussing relevant Delaware cases, one of which was authored by a panelist.
A shifting terrain
Another emerging issue is how long stockholders must continue to indemnify the buyer against problems that arise later in the target company. “These are cutting-edge issues in a shifting terrain that practitioners have to contend with on a daily basis,” Bartlett said. “At the conference, lawyers will get the input of regulators; they’ll also have an opportunity to inform regulators and jurists of the ramifications of their rulemaking. The conference is an exciting partnership bringing together the perspectives of regulators and jurists, academics and practitioners.”
Competition policy is another focus of the program. Large-scale technology acquisitions, such as the Oracle-Peoplesoft deal and Seagate’s acquisition of a Samsung storage division, sometimes prompt overarching restraints imposed by competition agencies around the world, according to Daniel Rubinfeld, a Berkeley Law emeritus professor. Rubinfeld served as the Justice Department’s chief economist during the Clinton Administration and will help lead the conference’s antitrust panel.
“There are close to 100 competition agencies around the world and many of them don’t have the competence or expertise of the U.S. or Europe, which is problematic and sometimes costly for technology companies doing these M&A deals,” Rubinfeld said.
In a format designed to foster broad interaction among participants, the program will be divided into two panel discussions: M&A and antitrust. Key speakers include Delaware Chancery Court Vice Chancellor J. Travis Laster; David Gelfand, of the Department of Justice’s Antitrust Division; Marie Oh Huber, general counsel at Agilent technologies; Ann Mao, McKesson Corporation’s M&A senior vice president; Sean Edgett, Twitter’s Director of Corporate and M&A; and Christine Flores, Director of Corporate & M&A at Google.
In addition to antitrust and competition policy, roundtable topics will include the structure of private mergers and acquisitions, governance, and activism. The conference will be held at California Memorial Stadium’s University Club, and discussions will be moderated by Professor Solomon and lawyers from Cleary Gottlieb Steen & Hamilton LLP, which is co-sponsoring the event.
“We’ve assembled a great conference featuring top people within 3,000 miles,” said Solomon, whose scholastic focus is financial regulation, deal theory, and jurisdictional competition. “This is an example of Berkeley Law being a leading voice on corporate law in the Pacific Rim.”
Friday’s event will be followed in May by a similar program in New York focused on East Coast M&A issues, which will also feature Berkeley Law professors—another example, according to Bartlett, of the law school “playing a key role in the national conversation about M&A practice.”
The conference is open to reporters, but on background only. Its organizers have imposed Chatham House Rules, which means that any reporters attending cannot attribute comments to any of the participants or reveal their affiliations. If reporters are interested in interviewing participants separately, they may contact the executive director of BCLB, Ken Taymor.