11 September 2006
The recent of wave of M&A activity has created opportunities for in-house lawyers and external legal advisers alike.
Two of the biggest winners are arguably Nick Deeming and Robert Herga of industrial gases giant BOC Group and UK airports operator BAA respectively.
In takeover situations, the bidder's legal chief typically secures the ongoing role to lead the combined entity's in-house legal team. However, as The Lawyer reports this week, BOC legal director Deeming bucked the trend by scooping the role to head the merged legal function following his company's takeover by German-based Linde.
Similarly, BAA legal chief Herga survived the axe despite being at the helm of the target company, which was taken over by Spain's Gruppo Ferrovial during the summer.
The move will be welcomed by Slaughter and May and Herbert Smith, which advised BOC and BAA respectively on the takeovers. As first reported by The Lawyer (4 September), BAA is set to review its external legal advisers following the takeover of the company by Ferrovial. Freshfields Bruckhaus Deringer, which advised Ferrovial, and Herbert Smith are now battling it out to secure the lead advisory role to the combined business.
In addition to Herbert Smith, BAA also has relationships with Allen & Overy (A&O) and Lovells. The latter has historically handled litigation and property work for BAA, while A&O advises the company on finance-related matters.
Meanwhile, Slaughters is still a strong contender for securing the lead advisory role for BOC. Deeming has confirmed that he plans to review the company's in-house legal function, as well as its relationships with external lawyers.
The review will be watched closely by Freshfields, which advised Linde on the BOC takeover. Being retained by the merged Linde-BOC business would be a welcome development for Freshfields as it is likely to lose P&O as a client following the takeover of the ports and ferries business by Dubai-based DP World and the subsequent departure of highly respected legal director Michael Gradon. DP World's general counsel George Dalton declined to comment on whether Linklaters, which advised the company on the P&O takeover, will be retained as its primary legal adviser.
Slaughters, meanwhile, appears to have suffered the most casualties. In recent months the firm has acted for several targets, including Boots, Associated British Ports (ABP) and Exel, which were taken over by Alliance UniChem, a Goldman Sachs-led consortium and Deutsche Post respectively.
Slaughters has conceded that it expects to lose Exel as a client. However, the firm is confident of holding on to Boots and ABP. Indeed, ABP general counsel Andrew Garner has held on to his role following the takeover of the company. Garner says that, although the company's relationships with Slaughters and Freshfields (which advised the Goldman Sachs consortium) have not been discussed with the consortium, he expects both firms to be retained in some capacity.
"We haven't been taken over by a trade bidder. Nor does the consortium have its own legal team. It values the senior management team and very much wants to keep it intact," says Garner.
Slaughters' role as Boots' legal adviser, however, looks less certain. Although Marco Pagni, who heads the merged entity's legal function, has appointed Slaughters and A&O as joint legal advisers to the company, he still plans to create the company's first-ever legal panel. The company plans to launch a tender exercise in late October and will be inviting Slaughters and A&O to pitch for the primary adviser role.
Incidentally, A&O won the mandate to advise Alliance UniChem because Slaughters decided to act for Boots. So the magic circle firm should count itself lucky to be in the running at all. That said, Pagni is full of praise for A&O's competition team. "I probably would've chosen A&O to advise on the competition aspects of the merger anyway," he says.
Meanwhile, there has been a number of changes at NTL following the company's £3.4bn merger with Telewest and the subsequent takeover of Virgin Mobile. The two deals saw the departures of Virgin Mobile's company secretary and general counsel Paul Cowlishaw and Telewest's legal chief Stephen Cook. NTL general counsel Bryan Hall and UK legal director Robert Mackenzie held on to their roles.
Following the shake-up of NTL's legal department the company appointed Fried Frank Harris Shriver & Jacobson as its primary adviser. Travers Smith, which has a longstanding relationship with NTL, and Ashurst have been retained as secondary advisers to the company.
Losing a client is a necessary adjunct to advising the target on a takeover. But as one M&A partner puts it: "Advising on a takeover is remunerative, so it's sometimes worth losing clients." That is looking on the bright side.