The demand for advice in D&O liability and the vital nature of the interface with ?compliance and governance continues to grow. It is not only the top firms which have discovered that they can push through far higher fees for work where the career of a board member is on the line.
D&O disputes on the rise in the Mittelstand
That has also spread from the listed companies into the Mittelstand, where the latter have been affected by antitrust damages claims over the past few years. After the Federal Court of Justice’s (Bundesgerichtshof) “Neubürger” ruling there is barely a manager in a large company who does not take the question of liability more seriously.
Carve-outs are increasing in the run-up to sales
In addition, the return of ambitious ?M&A projects has led to considerable amounts of highly complex corporate groundwork. The stability in the economy has also allowed corporates to put plans into practice which have been on ice for a while, in particular the carve-out and spinoff of divisions. The carve-outs at Bayer (of the material science division, Covestro) and Osram are the two most prominent examples.
Corporate becomes flagship discipline
The shift in emphasis in how firms view their core corporate lawyers is a highly significant development. It was not that long ago that international firms in particular regarded old-fashioned stock corporation lawyers as outdated – impractical lawyers with excessive academic standards, who did not bring in much turnover on their own.
The past few years have seen a more widely spread hybrid take root, however. Leading corporate lawyers are far more likely to maintain the trust of executive and supervisory boards for (still highly sought-after) transactional work if the same lawyers can advise on liability issues as well. The days of the pure M&A lawyers are also numbered, as could be seen at transaction-driven firms such as Linklaters: the lawyers previously best known for M&A recently advised on the carve-outs at Bayer and Osram as well as the E.on spinoff.
Stock corporation lawyers bid goodbye to Clifford Chance
It was therefore with some surprise that in the course of its reorganization, Clifford Chance seemed to find its corporate department relatively superfluous. After several departures, the firm is now left without a well-known corporate or takeover lawyer – that, for a firm which advises leading corporations on M&A, is astonishing. Jones Day, on the other hand, which last year gained one of those partners from Clifford, has seen a sea-change in its fortunes: The instruction from Canadian corporate Potash for the planned takeover of K+S is a massive step forward. On the other side of that deal was the core advisor to K+S, CMS Hasche Sigle, which took over the defense side – its practice, too, was strengthened over the past year by a corporate lawyer from Clifford Chance: Dr. Wolfgang Richter, who was also best known for his close relationship to Volkswagen. The final departure was just as surprising: the former head of the Clifford corporate practice, Dr. Arndt Stengel, moved to beef up the Frankfurt office of Milbank Tweed Hadley & McCloy, bringing considerable reinforcement to the corporate team which was otherwise based in Munich.
The following chapter deals with those firms that operate at the top end of the market, where they have gained a national or international reputation. This chapter spans advice to large companies and corporate groups, including stock corporations and their management/supervisory boards, on restructuring, corporate contracts, control agreements, amendments to articles of association, mergers and spinoffs, as well as takeovers according to the German Securities Acquisition and Takeover Act.
Legal advice on acquisitions is covered in the ?M&A chapter. This practice area is also closely connected to ?restructuring and insolvency, ?compliance audits and investigations and ?dispute resolution.
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