The most challenging legal problems currently facing corporate finance clients are evolving regulations in the financial services industry and modernizing regulations internationally, says Peter Stewart, managing partner of Curtis Mallet-Prevost Colt & Mosle LLP’s Dubai office and a partner in the private equity, venture capital, mergers and acquisitions, and capital markets groups.
Eventually the availability of capital will move back toward more normal terms, and private equity groups will have both the money to spend and the need to exit existing portfolio companies, says Steve Quinlivan, a shareholder in Leonard Street and Deinard's corporate and business, M&A, and other practice areas.
A new wave of merger activity will start to gain traction in the second quarter of 2010, partly because of the tremendous amount of equity that has been raised by private equity funds and is sitting on the sidelines, says Gary I. Levenstein, chair of the corporate, securities and finance group at Ungaretti & Harris LLP.
The unavailability of debt financing and the relative unavailability of equity financing are the biggest challenges facing corporate finance clients these days, says Richard Waggoner, Gardere Wynne Sewell LLP's private equity team leader.
It is likely that private equity firms will need to start selling some of their portfolio companies in order to satisfy liquidity obligations to their investors, says Mark D. Williamson, chair of the economic recovery team and co-chair of the mergers and acquisitions team at Gray Plant Mooty.
By far the most difficult legal challenges facing corporate finance clients are potential changes in the law that are under consideration in Congress, one of the most important of which is the taxation of carried interest, says Stephen M.L. Cohen, chair of Choate Hall & Stewart LLP's private equity group.
As market conditions stabilize and firms form a clearer picture about valuation, there will be a lot of private equity mergers and acquisitions activity in the coming year or so, says Frank D. Chaiken, leader of Thompson Hine LLP's corporate transactions and securities group.
A wave of activity is already under way and will continue to build for clients undertaking mergers and acquisitions and private equity/venture capital deals involving investment management businesses, including hedge fund managers, says Jim Abbott, co-leader of Seward & Kissel LLP's business transactions group.
The ability of people to communicate and share information has expanded at a much more accelerated pace than the law governing the use of that information, says Steven K. Humke, a founding partner of the Ice Miller LLP private equity and venture services group.
As the economy continues to recover, private equity will get back into the buying game. They’ve sat on the sidelines for too long and have too much uninvested capital that they need to deploy, says Christopher Bellini, of counsel in Dorsey & Whitney LLP's corporate group.
As the economy rebounds, expect significant activity from portfolio companies of private equity firms, says Steven Khadavi, co-chair of the capital markets practice group at Dorsey & Whitney LLP.
Companies could soon face the need to streamline their businesses by shedding noncore operations, leading to a round of dispositions of subsidiaries and divisions of those companies, says Eileen T. Nugent, co-head of Skadden Arps Slate Meagher & Flom LLP's private equity group.
Private equity firms will likely return to access the public markets — both in terms of initial public offerings of equity securities and high yield debt, says Dominick DeChiara, chairman of Nixon Peabody LLP’s private equity practice.
We are already seeing distress-driven investment activity and this will continue for a while — both capital-raising for that purpose as well as the investments themselves, says James S. Seevers Jr., head of the private equity practice group at Hunton & Williams LLP.
There’s likely to be a fair amount of activity in energy, infrastructure and the financial institutions sectors, depending in part on what happens with government initiatives in those areas, says Margaret “Peggy” Andrews Davenport, co-chair of Debevoise & Plimpton LLP's private equity group.
Private equity firms face increased regulation including possibly having to register as an investment adviser. Current efforts to regulate the industry are unnecessary, says William Kirsch, chair of the global private equity practice at Paul Hastings Janofsky & Walker LLP.
As investment returns falter, interests between investors and fund managers become more disparate, investment allocations among asset classes become skewed, and management teams become unstable and dysfunctional, some investors are looking for ways to redefine or sever their relationships with fund managers, says Kimberly Mann, head of Pillsbury Winthrop Shaw Pittman LLP's private equity team.
The plaintiffs bar is always looking for new, solvent targets, and given the unprecedented growth of private equity over the last decade, "deep pocket" private equity funds are very much in the litigation crosshairs these days, says Randy Bodner, head of Ropes & Gray LLP's securities litigation group.
As the credit crisis has driven most private equity investors to the sidelines, many merger and acquisitions practices have sharpened their focus on strategic buyers, where deals can get done without the same degree of financing. But there remain opportunities for private equity investment in certain sectors, such as infrastructure investment, according to Frederick S. Green, co-chairman of the mergers and acquisitions group at Weil Gotshal & Manges LLP.
The Bankruptcy Code in its current form has not kept up with the developments in the financial industry. Its structure, while adequate for old economy manufacturing entities, is not well-suited to cases involving intellectual property-heavy or portfolio companies funded by the private equity and hedge fund industries, says John Monaghan of Holland & Knight in our series of chats with high-profile bankruptcy lawyers.
The pros of using predictive coding far outweigh the cons. Given the heavy pressure on law firms and in-house counsel to reduce discovery costs, as well as the Justice Department's recent stance on the subject, it appears predictive coding will continue to emerge from the obscure world of legal technology to the mainstream of legal practice, say Michael Moscato and Myles Bartley of Curtis Mallet-Prevost Colt & Mosle LLP.
As demand for behavioral health services increases, and those individuals with need have insurance that will pay for it, the growth potential for behavioral health services is significant. Private equity investors are well-poised for jumping into this market to bring new business models and innovation to the industry, say attorneys with McGuireWoods LLP.
Title I of the JOBS Act significantly reformed the IPO process for emerging growth companies. Although it remains to be seen how and when the U.S. Securities and Exchange Commission will implement other provisions of the JOBS Act, we believe that the IPO on-ramp reforms will continue to take on greater importance as they enter their second year, say attorneys with Latham & Watkins LLP.
Public-private partnerships have been used in a wide range of sectors to provide public services, from power plants and railroads to hospitals and sanitation plants. Yet there are a variety of potential contractual arrangements and the financing of a PPP can be complex, say Maryam Khosharay and Herbert Glaser of Haynes and Boone LLP.
Not every company can be the next Facebook. But thankfully, for many startups, generating one billion users is not the end goal, nor should it be. Enter “narrowcasting” — one of a few reasons to be optimistic about venture capital, despite the first quarter of 2013 being the slowest for fundraising since 2002, says David Kaufman of Thompson Coburn LLP.
Over the last few years, provisions in credit agreements permitting the borrower’s equity sponsor and other affiliates to purchase term loans made thereunder and allowing the borrower to “repurchase” such term loans on a non-pro rata basis have become common. But many of the provisions governing such purchases do not adequately protect the non-affiliated lenders’ interests in a bankruptcy of the borrower, say Robert Finley and Ram Burshtine of King & Spalding LLP.
The decision by the Allegheny County Court of Common Pleas in In re H.J. Heinz Co. Derivative and Class Action Litigation represents a faithful application of the American Law Institute’s Principles of Corporate Governance, which were formally adopted by the Pennsylvania Supreme Court in the landmark decision Cuker v. Mikalauskas, say attorneys with Dechert LLP.
The “Veronica Mars” Kickstarter campaign has created a paradigm shift in film financing with successful crowdfunding. While crowdfunding is still a largely untouched topic by the courts, it needs to be red-flagged as an area that is ripe for litigation, says John Stephens of Sedgwick LLP.
U.S. Rep. Keith Ellison, D-Minn., recently reintroduced the Inclusive Prosperity Act of 2013, a financial transaction tax that, according to its supporters, would provide the federal government between $150 billion and $340 billion of revenue per year. The bill is, essentially, a sales tax on large Wall Street banks — however, its provisions seem to impact hedge funds and private equity funds, says David Sussman of Duane Morris LLP.
Recent remarks by Bruce Karpati, chief of the Asset Management Unit of the U.S. Securities and Exchange Commission, as well as recent enforcement cases by the SEC, demonstrate an increased focus on the private equity sector — in particular, on aggressive fundraising disclosures, conflicts of interest and “zombie funds,” among other things, say Scott Naidech and Garrett Lynam of Chadbourne & Parke LLP.