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Oct 01, 2008

Cleary Gottlieb is representing Dexia on all aspects of its recapitalization plan. After three days of intense negotiations between Dexia, its shareholders and the Belgian, French and Luxembourg governments, and on the back of heightened crisis in the European banking sector, a €6.4 billion recapitalization plan was put together in record time. Under the plan, the Belgian state and regions as well as the existing core Belgian shareholders of Dexia, on the one hand, and the French government and the CDC on the other, will each inject €3 billion into Dexia SA. In parallel, the Luxembourg government will be subscribing for €376 million in convertible bonds issued by Dexia BIL.

Dexia's recapitalization is the second instance of urgent, large scale support by European governments to Belgian financial institutions in the last few days, after the rescue, over the course of last weekend, of Fortis. A Cleary Gottlieb team is representing BNP Paribas in its announced acquisition of Fortis' operations in Belgium and Luxembourg, as well as the international banking franchises, for a total consideration of €14.5 billion.

Sep 24, 2008

Cleary Gottlieb is advising The Dow Chemical Company on worldwide antitrust matters in connection with its acquisition of Rohm and Haas Company.  As announced on July 10, Dow will acquire Rohm and Haas for $18.8 billion, including $3.5 billion in assumed debt.  The transaction is subject to regulatory clearances in the United States, the EU, and other jurisdictions.  Cleary Gottlieb is responsible for the regulatory filings in the United States and EU, and for coordinating the necessary filings in other jurisdictions.

Dow is a diversified chemical company with $54 billion in sales annually, supplying about 160 countries with numerous products and services, including food, pharmaceuticals, paints, packaging and personal care products.  With approximately $9 billion in sales annually, Rohm and Haas supplies specialty chemicals and materials to many industries, including building and construction, electronics and electronic devices, household goods and personal care, packaging and paper, transportation, pharmaceutical and medical, water, and food.

Sep 22, 2008

Cleary Gottlieb represented Barclays in its agreement to acquire Lehman Brothers' North American investment banking and capital markets businesses.

Sep 08, 2008

Cleary Gottlieb acted for Morgan Stanley, which was in turn the advisor to the United States Treasury, in connection with the conservatorship of Fannie Mae and Freddie Mac described in the press as “the most dramatic market intervention in years.”

As detailed in an announcement by Treasury Secretary Henry Paulson on September 7, the two companies have been placed into conservatorship. As a result, the Federal Housing Finance Agency, Fannie Mae’s and Freddie Mac’s regulator, has gained management control of the companies. Treasury has also established preferred stock purchase agreements with Fannie Mae and Freddie Mac under which Treasury could be required to provide as much as $100 billion to each of the companies, established a new secured lending credit facility for the companies, and initiated a temporary program to purchase Fannie Mae and Freddie Mac's mortgage backed securities in the open market.

Aug 26, 2008

Cleary Gottlieb represented Hewlett-Packard (“HP”), the computer industry giant, in its acquisition of Electronic Data Systems Corporation (“EDS”), a provider of business and technology solutions, including information-technology, applications and business process services, as well as information-technology transformation services. The EDS acquisition has an enterprise value of $13.9 billion. The deal was announced on May 13 and closed on August 26.

HP is a global provider to consumers, businesses and institutions of technology solutions, including IT infrastructure, computing, imaging and printing, with annual revenues totaling approximately $104.3 billion in 2007. Cleary Gottlieb previously represented HP in its 2007 acquisitions of Neoware and Opsware.

Jan 25, 2008

Cleary Gottlieb represented Citi in 10 concurrent offerings of $19 billion of convertible preferred stock and straight preferred stock. The offerings involved six individually negotiated private placements of $12.5 billion of convertible preferred stock to the Government of Singapore Investment Corporation, the Kuwait Investment Authority, HRH Prince Alwaleed bin Talal bin Abdulaziz Alsaud, Capital Research mutual funds, the New Jersey Division of Investment and Citi's former Chairman and CEO Sandy Weill, as well as a $3.17 billion public offering of convertible preferred stock and a $3.72 billion public offering of straight preferred stock. The private and public convertible preferred stock offerings closed on January 23 and the straight preferred stock offering closed on January 25.

Cleary Gottlieb represented Citi on the private placements, and represented the underwriters, led by Citi Global Markets, for the public offerings. Cleary Gottlieb also served as disclosure counsel to Citi in connection with its year-end earnings release.

Aug 11, 2008

Cleary Gottlieb represented LS Cable Ltd., a leading wire and cable manufacturer based in Korea, in its $1.2 billion acquisition of Superior Essex Inc., a Nasdaq-listed wire and cable manufacturer based in Atlanta, Georgia.

The transaction created the third largest wire and cable manufacturing company in the world, with pro forma consolidated 2007 revenues of $12.8 billion. This transaction represents the largest cross-border tender offer by a Korean company to date.

Mar 18, 2008

Cleary Gottlieb, as a co-counsel to Deutsche Telekom, won the dismissal of €3.9 billion claims before the Commercial Court of Paris on March 18. The claims, brought in 2005 by Vivendi Universal, were related to a long-standing, multi-jurisdictional battle for the control of PTC, a leading Polish mobile telephone operator.

PTC was founded in 1995 by Deutsche Telekom and Elektrim, a Polish company. Beginning in 1999, Vivendi and Elektrim entered into a series of investment agreements. The agreement established Telco, a joint-venture controlled by Vivendi. Vivendi and Elektrim agreed that Elektrim would contribute its PTC shares to Telco. Deutsche Telekom argued that the transfer was ineffective because it was in violation of the PTC Shareholders' agreement, and commenced arbitration proceedings in Vienna.

In August 2003, while the Vienna arbitration was pending, Deutsche Telekom and Vivendi engaged in settlement discussions. In September 2004, Deutsche Telekom discontinued the settlement discussions. Two months later, the Vienna Tribunal ruled in favor of Deutsche Telekom, deciding that Elektrim's PTC shares were wrongfully transferred to Telco.

In the recent litigation before the Commercial Court of Paris, Vivendi sought more than €3.9 billion in damages on the grounds that Deutsche Telekom wrongfully terminated the settlement negotiations and that Deutsche Telekom's actions eventually resulted in the "spoliation" of Vivendi's investment in PTC.

The Court dismissed Vivendi's claims. In its decision, the Court upheld Deutsche Telekom's defense that given the context of the discussions and since the parties had agreed not to suspend the Vienna arbitration proceedings pending their settlement discussions, they remained free at any time to opt for a litigated, rather than negotiated, settlement of their dispute.

Jan 09, 2008

On January 9 2008, the European Commission announced the closure of a three-year antitrust investigation into Apple's online music download agreements with the four major record companies (EMI, SONY BMG, Universal and Warner Music). Closure of the investigation was facilitated by Apple's public announcement that it will within the next six months lower the prices it charges for music on its UK iTunes® Store to match the already standardized pricing on iTunes across Europe. The Commission found that the agreements between Apple and the majors did not violate EU competition rules, and no concessions were made by the record companies. Cleary Gottlieb represented SONY BMG, which is a 50-50 joint venture between Sony Corporation of America and Bertelsmann.

In 2004, the UK consumer organization "Which?" complained with UK and EU competition authorities that Apple's iTunes online music service charged more for music downloads in the UK than in the rest of Europe, and that UK consumers were prevented from downloading music through lower-priced iTunes online storefronts directed at Continental European countries. In March 2007, the EU Commission brought charges against Apple and each of the four major record companies, alleging that the online music download agreements between Apple and the majors contained restrictions on "cross-border" sales within Europe.

The case clarified an important issue of principle, i.e., that it is legitimate for record companies (and other content providers) to limit a license for online content to the territory of individual EU countries and to provide for staggered release of such content across Europe. Restrictions on UK consumer' ability to download music through iTunes online storefronts directed at other countries did not reflect an agreement between Apple and the record companies, but reflected each record company's freedom to determine when and what music content to license for online sale to UK consumers (as well as Apple's unilateral decision not to allow "cross-border" access to iTunes online storefronts). In announcing the closure of its investigation, the Commission explained, "the fact that the same content is not available in all EU countries is not the result of restricted business practices between Apple and the record companies, but of the restricting copyright legislation".

Sep 18, 2007

On September 17, the European Court of First Instance rendered judgment in the long-awaited and controversial Microsoft case. Cleary Gottlieb represented RealNetworks, and was co-counsel to the European Committee on Interoperable Systems (ECIS) and the Software and Information Industry Association (SIIA). The firm also advised a variety of clients in the United States and European Union interested in the implications of the case. The case involved two broad issues:

The Court upheld the European Commission's finding of illegal tying of Windows Media Player to Windows, which the Commission had found excluded competition in streaming media players and contributed to the maintenance of Microsoft's desktop software platform monopoly.

The Court also upheld the European Commission's finding of illegal refusal to supply interoperability information that third-party server manufacturers needed to enable their workgroup servers to communicate fully with Microsoft Windows clients and server networks. This resulted in monopolization of server markets, and contributed further to monopoly maintenance of the desktop software platform monopoly.

European antitrust rules, like Section 2 of the U.S. Sherman Act, forbid companies from abusing their dominant position in an industry to the detriment of consumers and the structure of competition. The Microsoft ruling represents a landmark interpretation of that ban. The decision also supports the stance of EU regulator, which has been more inclined than the U.S. Department of Justice to find aggressive behavior by dominant companies as abusive. At the same time, the analysis in the judgment is close to the rule of reason analysis applied by the DC Court of Appeals in Microsoft II.

Feb 01, 2008

Cleary Gottlieb represented the underwriters, led by Kotak Mahindra Capital Company and UBS Securities India, in an initial public offering by Reliance Power Limited of 260,000,000 equity shares listed on the Bombay Stock Exchange and the National Stock Exchange of India. The $2.93 billion offering is the largest IPO in Indian history. The transaction closed on February 1. 

The global offering was made to investors under Regulation S and Rule 144A.

Reliance Power is developing 13 power projects in India with a combined capacity of over 28 gigawatts at a projected cost of $28.5 billion. Reliance Power is an affiliate of the Reliance ADA Group, one of the largest business houses in India, comprising companies in the telecommunications, financial services, media and entertainment, infrastructure, energy and other sectors.