Taking the gamble

As the arrest of BetOnSports’ former chief executive David Carruthers continues to send shockwaves through the online gaming industry, a split has emerged in the investment banking and legal communities.

There are those banks and firms that fall into the Skadden and Credit Suisse camp and those occupying the Freshfields and HSBC camp.

As we report today (see cover), Herbert Smith has joined the Skadden camp and is shunning IPOs in the online gaming sector because of concerns over the legality of online gaming in the US.

In contrast, Freshfields and Linklaters have taken a bullish stance and are wading in where others fear to tread. The magic circle firms advised on the PartyGaming and 888.com IPOs last year. And despite the recent furore the firms look set to bag starring roles on the forthcoming Pokerstars flotation.

Freshfields also continues to act for Betfair, which is rumoured to be plotting its stock market debut.

Herbert Smith has compelling reasons for shying away from the online gaming sector. Since The Lawyer reported Skadden’s decision to warn investment banks not to underwrite online gaming IPOs almost a year ago, little has happened to clarify the legal and regulatory position in the US.

Thanks to the uproar currently surrounding BetOnSports, the issue of the risks associated with advising gaming companies has once again sent jitters across Wall Street and the City. Some lawyers are running scared. Mischon de Reya got cold feet and ditched BetOnSports as a client earlier in the year – but it probably got a sneak preview of the bigger issues round the corner.

What’s more, thanks to the case of the NatWest Three, individuals involved with online gaming companies now also face the added fear of extradition.

But lawyers in the Freshfields camp argue that Herbert Smith’s stance is too cautious. Surely it’s more lucrative for a firm to act on an IPO than to advise its clients not to get involved in one?
Firms can also protect themselves by ensuring their legal opinions contain sufficient disclosures, but there are further threats around the corner.

The bullish law firms are gambling on the premise that they lie too far down the pecking order to fear for their own freedom. Is that a gamble too far? The Lawyer may yet set up an (online) book on the first lawyer to be extradited. Tim Jones from Freshfields is the 5-2 favourite, with David Collins of BLP available at a respectable 4-1.