Practice/Industry Group Overview
Across a broad spectrum of industries, Sutherland provides pragmatic advice and support that enables clients to evaluate, structure and complete merger and acquisition transactions.
Mergers and acquisitions encompass a variety of issues and practice areas. Whether our clients are public or private, Sutherland attorneys understand the particular challenges they face in M&A deals. We work closely with clients to determine the most advantageous transaction structures. Even with contentious adverse parties and complicated structures, our attorneys know how to assess and negotiate deal terms that will achieve our clients’ business objectives.
Our M&A attorneys represent clients in their national and international acquisition programs. We serve a wide range of industries, including aerospace and defense, communications, consumer products, e-commerce, energy, financial services, insurance, manufacturing, natural resources and technology. Our attorneys are well-versed in both strategic and financial transactions and the unique requirements for mergers, tender offers, stock and asset acquisitions, corporate restructurings, spin-offs, recapitalizations and other deal structures. We also negotiate and establish alliances, joint ventures, and other partnering relationships, and we develop innovative approaches to implement other tailored commercial relationships.
We provide counsel on the acquisition of publicly-owned companies, and we represent special committees of independent directors formed to consider these transactions. We understand and guide our clients through the unique issues raised by cross-border transactions and those involving national security.
Versatility. Sutherland attorneys can handle any M&A and complex commercial transaction, public or private, regardless of its size or complexity.
Full service. With 400-plus attorneys in the firm, our M&A lawyers can call on colleagues in securities, tax, employee benefits, intellectual property, antitrust, environmental, international, government contracting/national security matters and other specialized areas as appropriate.
Continuity. We staff transactions leanly unless the client requests otherwise. Many clients value the greater continuity achieved by having a few lawyers handle a transaction from beginning to end, rather than having a larger number of lawyers moving in and out of the transaction over time.
Auction experience. Our attorneys work on many deals involving the auction process, from developing bid letters and mark-ups of acquisition agreements proffered by sellers in conjunction with bid submissions to non-auction scenarios involving one-on-one negotiations, often during a negotiated exclusivity period.
Extensive public and private client experience. Our attorneys know no-shop, go-shop and “fiduciary out” provisions, tender offers and top-up options, termination and reverse termination fees, financing contingencies and other deal protection devices common in public company transactions. For transactions involving privately held companies, Sutherland attorneys commonly advise on purchase price adjustments, earn-outs and other incentives, hold-backs and escrow arrangements and the issues that arise with respect to post-closing indemnification rights.
Nuts and Bolts
Sutherland manages our clients’ M&A needs by marshaling the resources of many practice areas.
- We handle all antitrust issues, including evaluating potential antitrust risks associated with transactions; structuring transactions to reduce antitrust risks or achieve other appropriate client objectives; preparing premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act and the Defense Production Act (Exon-Florio); handling second request and other investigations initiated by the U.S. Department of Justice, the Federal Trade Commission and state antitrust enforcement agencies; and defending the legality of transactions in litigation brought by enforcement agencies or private parties.
- Our attorneys are skilled in structuring and counseling joint ventures with regard to antitrust considerations, particularly in regulated industries such as banking, energy and insurance.
- We participate in financial restructurings on behalf of clients involving asset spin-offs to stockholders, recapitalizations, stock-for-debt swaps and debt-for-debt swaps.
- Securities and corporate governance
- We advise boards of directors and special committees concerning their corporate law fiduciary duties and their obligations under securities laws.
- Intellectual property
- Our IP team works seamlessly with our M&A team to address the intellectual property considerations that often arise in M&A transactions, including IP diligence, pre-emption issues, patent licensing, and trademark infringement.
- Our tax group develops strategies to minimize federal, state, local and foreign taxes for deals involving stock and asset acquisitions and dispositions, reorganizations, liquidations, distributions and affiliated group transactions.
- The firm’s environmental lawyers evaluate environmental regulatory compliance and the nature of governmental and third-party claims. Our environmental lawyers assist in developing transaction structures and documentation to allocate environmental costs and risks between buyer and seller.
- Our energy lawyers address federal and state regulatory issues arising from transactions involving oil, natural gas, petroleum products and electrical generation and transmission assets and facilities, including nuclear and renewable energy sources.
- Regulatory and Government Contracts
- Sutherland’s regulatory attorneys are versed in the trade, government contracts, communications and commodities laws, as well as other federal and state regulatory issues that impact mergers and acquisitions.
- Our banking group has extensive experience with M&A transactions for many types of depository institutions, their affiliates and intermediaries and the unique regulatory requirements that are inherent.
Our M&A team provides clients with clear, strategic guidance to avoid pitfalls that can delay or derail transactions. Pragmatic business judgment and creative problem-solving underlie our counsel in all of our engagements.
Sutherland serves as lead transaction counsel to First Data in formation of Bank of America Merchant Services.
Sutherland represented First Data Corporation in the formation of Bank of America Merchant Services, a joint venture with Bank of America N.A. that involved over $7 billion in acquisition transactions.
Sutherland represents Great-West Lifeco Inc. in $4 billion deal.
Sutherland advised Great-West Lifeco in its acquisition of Putnam Investments.
Sutherland advises British Nuclear Fuels in $5.4 billion auction.
Sutherland represented British Nuclear Fuels plc in all aspects of the $5.4 billion auction sale of its U.S. subsidiary Westinghouse Electric Company to Toshiba Corporation.