“PRACTICING LAW doesn’t need to be like
being in a secret society,” says Latham &
Watkins corporate partner Kirk Davenport,
who has long made it his professional mis-
sion to swap opaque jargon for plain Eng-
lish in legal documents. Early in his career,
he says, “I remember thinking that it would
be much easier to find my way through this
maze if anyone of the many people who
had been through this before had left some
bread crumbs.” A decade ago, under the di-
rection of the Securities and Exchange Com-
mission, Davenport spearheaded Latham’s
development of a plain-English notes sec-
tion for high-yield bond offerings. Today, the
notes section in virtually all high-yield bond
transactions is patterned on the Latham
template, regardless of whether the firm is
involved. Indeed, for a time after the form’s
introduction, the SEC would tell firms, in
comments on bond offerings, to “please
conform your description of notes to the
Latham & Watkins standard form.”
KIRK DAVENPORT
Latham & Watkins
New York
Going Hostile
JOSEPH FLOM
Skadden, Arps, Slate,
Meagher & Flom
New York
Skadden’s embrace of the unsolicited takeover paid off handsomely.
MARTIN LIPTON
ONE OF THE iconic
lawyers of his generation, the late Joseph
Flom made his name
by defying convention. At a time when
other large law firms
eschewed hostile
corporate work as
ungentlemanly, Flom
embraced the nascent practice in the 1960s and pushed it to the
forefront.
“Joe probably single-handedly elevated unsolicited M&A work from essentially nothing
to a central tool of corporate strategy for mainstream corporate America and globally,” says
Skadden M&A partner Peter Atkins.
Atkins recalls how, when the world of hostile
dealmaking was taking shape, Flom realized the
value of the 1968 Williams Act, which governs
tender offers. “It was the first federal statute that
legitimized takeovers,” Atkins says. “He quickly
grasped it as a tool with a federal halo around it
for acquisitions in the face of opposition.”
At the same time Flom, who died in 2011,
helped transform Skadden into one of the
world’s most successful firms by cross-selling
other practice groups to M&A clients. During
the takeover boom, clients often paid Skad-
den a retainer to keep Flom from representing
an adversary. Instead of pocketing the check
and sitting on the sidelines, Flom insisted that
the money be used to let lawyers from other
practice groups work for that client. “He was a
long-term thinker, even when the firm was very
small,” says Eric Friedman, Skadden’s current
executive partner.
Still, Flom’s most-cherished innovation
wasn’t in the M&A world at all: It was the Skadden Fellowship Foundation, which to date has
supported 677 lawyers in public interest jobs.
Wachtell, Lipton,
Rosen & Katz
New York
IT BEGAN WITH A September 1982 memo to
colleagues and clients titled “Warrant Dividend
Plan.” But it would rise to prominence under
a much more theatrical moniker: the “poison
pill”—a hostile takeover defensive mechanism
that, among other things, allowed for the issuance of a security that dilutes the target company’s value. The tactic—which was upheld by
the Delaware Supreme Court in 1985—was the
brainchild of Martin Lipton, who had already
developed a reputation as a leading advocate
for corporate clients facing hostile takeovers.
During the 1980s, a period defined by corporate raiders, leveraged buyouts, and the rise
of private equity, the poison pill weakened the
ability of potential buyers to sidestep corporate
boards. Well into the early 2000s, two-thirds of
all public companies had poison pill provisions.
And while its popularity has waned since then,
in recent years it has come up in takeover efforts or board control fights involving dozens of
companies including Barnes & Noble, Inc.; Net-flix, Inc.; and Yahoo! Inc. Even today, it remains
the only way for a company to thwart a tender
offer without the approval of a court. The pill
“does what it was intended to do,” says Lipton
matter-of-factly about the tactic’s ubiquity and
longevity. “It preserves the board’s control over
the destiny of a company.”
Political Animal
THOMAS BOGGS JR.
Patton Boggs
Washington, D.C.
Putting lobbying work on the big-firm agenda.
OF THE 10
highest-grossing Washington, D.C., lobbying
outfits in 2012, six
were law firms. And
the highest-grossing
of all is the law firm
Patton Boggs, which
has generated nearly
a half-billion dollars
in lobbying revenue
since 1998. The firm set the template for the
seamless blend of lobbying and legal services
that’s now commonplace in the nation’s capital:
Of the Am Law 200 firms with Washington,
D.C., offices, the majority have lobbying capabilities (or at least say they do).
In 1966, when Thomas Boggs Jr. joined
James Patton Jr.’s firm four years after its founding, most D.C. law firms didn’t lobby, except on
tax issues. Lobbyists, who then numbered in the
dozens, were almost exclusively former government officials working out of small shops.
For Boggs, the idea of pursuing lobbying
work was about playing to his strengths. He was
only one year out of Georgetown University
Law Center when he joined Patton’s firm, so he
didn’t have years of legal practice under his belt.
But as the scion of a Louisiana political family
and former staffer in the Johnson administra-
tion, he knew his way around Washington, D.C.
Asked why he went after lobbying work, Boggs
quips, “We had a need for business,” before
pivoting to his more polished response: “We
thought being lobbyists made us better lawyers
and being lawyers made us better lobbyists.”
In the 1970s that strategy began paying off
with high-profile lobbying assignments for the
Alaska Pipeline and the $1.5 billion federal bail-
out of Chrysler Group, among other matters.
Boggs recalls: “For a good while we had the
field all to ourselves.” No more.
