How does M&A coursework translate into the day-to-day practice of M&A law? What does an M&A lawyer spend most of their day doing? And can you actually specialize in international M&A or tech M&A?
Germaine Gurr, Neeta Sahadev, Wayne Stacy
Wayne Stacy 00:00
Welcome, everyone to the Berkeley Center for Law and Technology’s Career in Technology podcast. I’m your host Wayne Stacey. And we’re here today to talk about mergers and acquisitions. Every law school has an M&A class. But the question arises, what is M&A in practice? What is the first year, second year, third year lawyer end up doing with all of the the book learning that comes in that second or third year? So we’re here today with two partners from the international law firm of White and Case. We have Germaine Gurr and Neeta Sahadev. So thank you both for joining us. Law School teaches all about the concepts of M&A. But what is the actual practice look like for junior and mid-level attorneys?
Neeta Sahadev 00:49
From my experience, and I went to law school many, many years ago, truthfully, law schools didn’t quite prepare me for actual practice of law. Most of the courses I took including the business courses I took and M&A related courses, very much focused on theoretical concepts, which is very different from when you’re actually a practicing lawyer including as a junior and a mid-level attorney. Law school doesn’t teach you what the deal is going to be like. An M&A transaction doesn’t give you the insight into due diligence and transactional documents, how signing happens, closing occurs. And so I think the real experience that you get initial look into what M&A transactions are like is during your summer, when you’re summering at a law firm, or in your first year, that’s when you get to be on a transaction, actually see what documents means when someone says, Oh, do you know what a merger is? Or share purchase or an asset deal? You actually get to see what that all means. Like, what is that transaction? What does the resolution mean? What is a bring down certificate? What does due diligence even mean? A lot of people don’t know that coming out of law school, right? Like what does due diligence actually mean? So I think the expectations that when you’re coming out of law school, or whether you’re a 2L or a 3L, we don’t really expect you to know much about M&A in any sense, other than maybe what you read about maybe knowing what the difference between a corporation or a partnership is. Other than that, we’re not expecting you to know anything, we just expect you to be eager to learn, have a genuine interest in M&A. And then the teaching will begin.
Germaine Gurr 02:19
On my end, I would add that because law school teaches through the Socratic method and the case study method, it is quite challenging for someone going into a transactional practice to understand how to translate those critical thinking and analytical skills from a case study Socratic method to the application of transactional work. And oftentimes, what we see is that Junior associates will start working, will hit the ground running, of course, and work on diligence and ancillary documentations on transactions. And they’ll get comfortable with looking at precedents and kind of following forms. And will forget those key skills and how to apply them, the critical thinking and analytical skills, which are really important for transactional practice just as they are for litigation, bankruptcy or any other specific practice. And I would advise law students when they’re coming into the practice or a transactional practice, not to forget those critical thinking and analytical skills. So when they’re doing something with an agreement, that might not necessarily be like what they were doing when they were reading a case study, they should still be thinking about what the intent of the matter is, you know, what’s the intent of the agreement? What’s the purpose of the draft, what is intended to go across to the client, and make sure that what’s actually being drafted, whether it’s from a form or precedent is articulating what was intended. And those critical thinking and analytical skills are very important in the practice of transactional law.
Wayne Stacy 04:07
Well, if you read law firm websites, you look at the press, there’s a lot of talk about tech focused M&As. How does tech focused M&A differ, if at all, from traditional M&A?
Germaine Gurr 04:22
These days, it’s hard to it’s hard to say that any M&A transaction doesn’t have some tech focus, in so far as many businesses are more, you know, becoming digitized, whether it’s their back office, operating systems or the actual business that they’re in, is digitized and has a tech focus. Almost every company for which we’re either representing on a buy side or sell side or a merger will have some tech aspect to it. And some of the key distinctions that I would highlight when we’re looking at tech, in particular in an M&A transaction, whether it’s all tech, or a portion of tech, is that we really need to understand what the business, why the business is using that technology, what its intent is, what its purpose is. We also need to understand whether the business owns the intellectual property or the technology or if it’s licensed in some way. And whether there are any restrictions on the ability to use that technology and what those restrictions are and how they might impede the business going forward. Those are some key aspects that I’d highlight when we’re looking at technology related M&A, but I’d mentioned again, that these days, almost every transaction has a technology component to it.
Wayne Stacy 05:50
If I understand what you’re saying correctly, students shouldn’t be focusing on being a tech focused M&A lawyer. They should focus on M&A, and then building the additional skills to address the technology issues that are arising.
Germaine Gurr 06:05
That’s right. At White and Case, for example, we do have within our M&A practice, a tech transactions group, that has specialized in tech transactional work, so focusing on intellectual property, licensing technology, and other commercial related matters related to technology. However, that group sits within the broader M&A group. And some of them either started as intellectual property lawyers, which is a whole different kind of much bigger world than just tech transactions, or started in M&A and then focus in the technical part of M&A. But for students, I would focus first on building the skill set to become a good transactional lawyer. And then if the interest is in technology transactions, specifically, finding the right mentors and role models to focus on transactions that might have more of a technology bent to them.
Neeta Sahadev 07:00
To add to what Germaine said, I think that’s 100% correct that as a student, you should be focusing on M&A generally. Every law firm, like you mentioned, will have a tech M&A practice. But those lawyers are not exclusively doing tech M&A. As lawyers, as M&A lawyers, we’re doing all different types of transactions. For example, I sit in Silicon Valley. So yes, I do tech M&A, just given the nature where I am, whereas Silicon Valley, we deal with a lot of tech clients. But at the same time, there’s a lot of non tech M&A that I do as well. And to sort of go back on the difference between tech M&A versus regular M&A, I think the deal structure tends to be the same. You go through the very same steps and stages in M&A transactions. But as Germaine mentioned, usually tech M&A, IP, and technology is the main asset that someone’s acquiring. And so the scrutiny on those assets, like Germaine mentioned, is much more. And so you, you work a lot more closely with your tech trans colleagues, or IP specialists, your privacy specialists to understand what those core assets are. And to make sure your clients if you’re active for a buyer, getting the value that they’re looking to acquire. So it’s just your focus shifts, but you’re still sort of doing the same stuff in a regular M&A.
Wayne Stacy 08:17
Well, I know White and Case has a big international presence. So how does that international presence change the types of clients and the types of m&a work you end up doing?
Neeta Sahadev 08:28
Yes, White and Case definitely does have a huge international presence. And that does reflect on the type of work that we do, I think more often than not, we do a lot of international deals. So, either it’s representing a client, a buyer that is looking to acquire a company that’s outside of the US, or you’re representing a client that’s outside of the US, that’s focusing on a domestic target. We do a lot of deals where even if the main target is in the US, they have operations all across the world. And so we’re working very closely with our offices in various different countries. And so again, like I mentioned, that the work stays the same, the stages of the transaction stay the same. It’s just in a much more global and international scale, the due diligence that you do, the coordination that you’re having with various teams is on an international level and touches upon various jurisdictions. There might be jurisdictional specific requirements that you need to be aware of, and that factors into your transaction. But speaking for myself, a lot of my practice definitely does include international deals, working with clients that have operations internationally and are looking to acquire targets from various different jurisdictions. So there’s definitely a huge international aspect of the work that we do.
Germaine Gurr 09:43
I worked in-house for many years, and was outside counsel then in-house and outside again, and I worked for a global fortune 500 company that had operations in 90 countries. As a result when I’ve since come back to being outside counsel, a lot of my work is multi-jurisdictional. And one of the key takeaways for me having done cross border transactions for a good portion of my career is a significant part of that cross border work really isn’t necessarily legal in nature, but rather kind of cultural in nature. And it’s really important to understand that when you’re working on a matter, for example, I’m working on a transaction now that is in probably 80 different countries. One, you’ve got to be patient and kind of take a step back and think through how you’re going to put this 5000 puzzle piece together. And two, you really need to understand and use the resources locally, to understand the cultural nuances of how to do transactions in those jurisdictions. And when you’re organizing or structuring a transaction, you’ve got to understand history. In certain parts of Asia Pac, you might not want to put a holding entity in a particular country that’s going to hold certain subsidiaries, if that’s going to make the people in different countries upset given the histories between the countries. And the same holds true for Europe and other jurisdictions. So having that kind of cultural awareness is really important as part of your job when you’re working on cross border deals.
Wayne Stacy 11:26
Well, the last question I’ll put to both of you. For students that have decided they want to go toward M&A, what coursework should they be thinking about in preparation?
Neeta Sahadev 11:38
I definitely think that they should consider taking your basic business associations course. I think a securities law course is very helpful, especially if you’re doing M&A work there is a chance that you’re going to be doing public style M&A deals. So the basic understanding of how the SEC rules work is definitely helpful. I think another one that I recommend is corporate tax 101, if that’s available. I think when you do M&A work, tax is going to be a very key aspect of when you’re when you’re looking to structure a deal, trying to understand the tax repercussions of structuring it in one way versus the other. So basic understanding of what are the tax rules that apply to corporations is definitely helpful as well. And then I do say this, after your second year, my recommendation to 3Ls is, take a course that you enjoy, and that you likely will not get to pick again, because you’re going to be doing this for the rest of your life because once you pick a particular strain, so it’s your chance to explore, take a course that you have a genuine interest in. Don’t be so focused on you know, structuring your entire coursework geared towards M&A, that’s going to be a lifetime of learning waiting for you. So have some fun with your coursework as well.
Wayne Stacy 12:52
Germaine, how about you? What would you recommend?
Germaine Gurr 12:56
I mean, that is so true. You know, have fun, and enjoy some of the amazing class offerings that are offered to you in law school, you know, the chances that you’re going to be going back to school anytime soon, after you graduated is probably slim. So if you have a chance to take, you know, rock and roll in the law, or music in the law, or some, you know, first amendment, whatever the fun classes are, that, you know. I echo everything Neeta said, it’s true. And then if you can fit in some of these fundamental courses, like tax, corporate tax, and business associations, and you know, an anatomy of the deal type course, you should go ahead and do that. It’ll help you not feel like you’re, you know, speaking a different language when you come into the firm. But, you’ll learn along the way, as all of us have too.
Wayne Stacy 13:53
I’ve had the benefit of doing lots of these podcasts and asking that same question to several different attorneys. And I have to say that the seasoned attorneys that are highly successful all have that exact same answer. Take your fundamental courses, and then go take something interesting. Enjoy your time. Now, some other people say take the interesting courses to make yourself interesting. That’ll help you get clients later, but we won’t – I won’t question their motives. But it seems like the most consistent piece of advice is make sure you enjoy that last year of law school because you’ll never get it back. So thank you. I appreciate the advice. This has been a wonderful, wonderful podcast, a great learning experience for the students. Thank you.
Germaine Gurr 14:39
Thank you for having us.