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Acquiring or Selling the Privately Held Company


Speaker(s): Ackneil M. Muldrow III, Benjamin E. Wallace, David Leinwand, David W. Pollak, Douglas T. Schwarz, Ellen L. Hayes, Eric A. Prager, Hugo Dubovoy, J. Mark Poerio, Jack S. Bodner, Jennifer L. Chu, Joseph A. Castelluccio, Joseph Ehrlich, Kimberly A. deBeers, Matthew B. Goodman, Michael J. Traube, William B. Sorabella
Recorded on: Jun. 18, 2019
PLI Program #: 251949

Douglas T. Schwarz is a trusted advisor to and advocate for employers in all aspects of labor and employment law. He litigates in court, arbitration, and administrative proceedings; counsels employers on human resources matters; negotiates and drafts executive employment and separation agreements; advises on labor and employment aspects of corporate transactions, both domestic and cross-border; and conducts internal investigations of employee complaints. Doug also handles ADA Title III and state law matters involving access of persons with disabilities to public accommodations.

Doug’s clients include financial services firms (mutual funds, hedge funds, private equity, venture capital, commercial and investment banks, wealth management); educational institutions; and media, technology, and telecommunications, pharmaceuticals, and life sciences companies.

He represents numerous non-US companies, from Japan and elsewhere in Asia, the United Kingdom, and Europe, regarding their US labor and employment matters, and US companies on international labor and employment issues.

Doug’s experience includes litigating claims of discrimination, harassment, and reasonable accommodation (race, gender, age, disability, pregnancy, sexual orientation, religion), whistleblower retaliation, wage and hour violations (bonus, commission, overtime and minimum wage), non-competition, non-solicitation, and trade secret breach, defamation and privacy; counseling on reorganizations, reductions-in-force, and executive hiring and termination matters; developing and implementing litigation-avoidance strategies, diversity and affirmative action plans, and training programs on harassment prevention, diversity, and performance management; and advising on government audits (by OSHA, the Department of Labor and OFCCP) and labor-management relations.

He also serves as an arbitrator and mediator.

Doug represents clients in a range of other matters, including housing, education and public accommodations discrimination.

Doug has served in government as commissioner of the Massachusetts Commission Against Discrimination (MCAD), as an assistant attorney general in the Civil Rights Division of the Massachusetts Office of the Attorney General and as a US District Court law clerk.

He is a graduate of Dartmouth College, 1981, Bachelor of Arts, and Harvard Law School, 1986, Juris Doctor.


Jennifer Chu is a corporate partner and member of the firm’s Mergers & Acquisitions and Private Equity Groups. Her practice focuses on advising corporations and private equity firms in mergers and acquisitions, joint ventures and other corporate matters, across a broad range of industries with a particular focus on transactions in the healthcare, financial services and insurance industries. Ms. Chu is recommended and recognized as a “Next Generation Lawyer” by The Legal 500 US (2017), where she is described as “very seasoned in handling private equity matters.” She was named a “Rising Star of 2017” by the New York Law Journal.

Ms. Chu publishes and speaks regularly on M&A and private equity matters. She is a contributing author to the annual Health Care Mergers and Acquisitions Answer Book (Practising Law Institute, 2017), an extensive reference guide addressing structuring, regulatory, due diligence and documentation issues in healthcare M&A and licensing transactions. Her recent articles include: co-author of “How Tax Reform Could Impact the Healthcare Industry,” Law360 (November, 2017); “How Section 1332 Waivers Could Impact Health Care Reform,” Law360 (July, 2017); “Shining a Light on GOP Plan for Health Care Reform,” Law360 (March, 2017); “The Outlook For The Pharmaceutical Industry Under Trump,” Law360 (January, 2017); “The Outlook on Drug Pricing: At What Cost?,” Law360 (December, 2016) and “A Closer Look: Increased Cybersecurity Regulations are Impacting the Insurance and Financial Technology Sectors,” Best's Review (June, 2015). She is an Editor of The Debevoise & Plimpton Private Equity Report.

Ms. Chu’s recent ‎speaking engagements include “Indemnification Issues,” Acquiring and Selling the Privately Held Company 2017 (June, 2017) and “Health Care M&A: Three Hot Topics,” PLI One-Hour Briefing (April, 2017).

Ms. Chu joined the firm in 2006. She received her J.D. cum laude from Harvard Law School in 2006, where she served as co-Editor-in-Chief of the Harvard International Law Journal. She received her M.A. with distinction from the University of London in 2002, and her A.B. magna cum laude from Harvard College in 2001.

Ms. Chu is a member of the Bar of New York.


Ackneil M. Muldrow III, Partner in the New York office of Akin Gump Strauss Hauer & Feld LLP. Ackneil M. (Trey) Muldrow, III principally focuses his practice on merger and acquisition transactions and corporate governance counseling.

Education: J.D., University of Virginia School of Law, 1995; A.B., Princeton University, 1992; Bar Admissions, New York.

Corporate • Mergers and Acquisitions • Corporate Governance • Private Equity • Special Situations

Mr. Muldrow draws upon over 20 years of legal experience when providing legal advice to clients in complex domestic and international transactions. Mr. Muldrow’s transactional experience includes mergers, acquisitions, divestitures, joint ventures and control and minority investments across a variety of industry sectors. Mr. Muldrow’s clients have included a wide range of corporations, private equity and hedge funds as well as sovereign and fundless sponsors.

In addition to his transactional matters, Mr. Muldrow is frequently called upon to advise senior executives and boards of directors of private and exchange listed companies on sophisticated corporate governance matters as well as with respect to compliance with the federal securities laws.

Mr. Muldrow serves on the Firm’s Corporate Department Steering Committee and leads the New York office Diversity Committee.


David Leinwand is a partner based in Cleary Gottlieb’s New York office. His practice focuses on merger and acquisition transactions.

He has represented a broad array of buyers and sellers in a wide variety of public and private deals. In particular, David has significant experience advising private equity firms in their acquisitions and dispositions. He also provides advice regarding governance matters and the fiduciary duties of officers and directors to corporations and their boards.

Over the past few years, David has worked on a number of high-profile deals involving companies in a range of industries, including consumer products and retail, energy, financial services, information technology, and pharmaceuticals and biotechnology.

He has been recognized by The Legal 500 U.S. and IFLR 1000: The Guide to the World’s Leading Law Firms as a leading corporate attorney. He is a frequent speaker on topics related to private equity M&A transactions.

David joined Cleary in 1992 and became a partner in 2000.

He received his J.D., magna cum laude, from Harvard Law School and his B.S., summa cum laude, from the University of Pennsylvania, Wharton School of Business.  He clerked for the Honorable Michael B. Mukasey on the United States District Court for the Southern District of New York.

 


David W. Pollak has more than 30 years of experience as a corporate lawyer. He represents clients in public and private offerings of securities, including initial public offerings, and merger and acquisition transactions. David works closely with life sciences, financial services, technology, information services, and investment banking clients, and represents private equity firms. David serves as the firm’s Managing Partner of Operations, responsible for the firm’s financial performance, and is a member of the firm's Management Committee.

David served as leader of the firm’s business and finance practice for seven years, an elected member of the firm’s Compensation Committee for eight years, and an Advisory Board member for six years. He teaches a third-year course in negotiating skills in the context of M&A and securities transactions as an adjunct professor at New York University School of Law.

 

SELECTED REPRESENTATIONS

Represented Cambridge Global Payments in its sale, for approximately C$900 million, to Fleetcor.

Represented Mercury Payment Systems in its sale, for approximately $750 million, to Silver Lake Partners.

Represented Health Net, Inc. in its $6.8 billion cash and stock merger with Centene Corporation.

Represented Nash Finch Company in its $1.3 billion merger with Spartan Stores Inc.

Represented Electra Ltd. in its acquisition of Gilston Electrical and Hellman Electric.

Represented Anterios, Inc. in its sale to Allergan.

Represented Portware in its sale for $265 million to FactSet.

Represented BlackBerry in its acquisition of AtHoc, Inc.

Represented BlackBerry in its acquisition of WatchDox, Inc.

Represented BlackBerry in its acquisition of Movirtu Limited.

Represented Conifer Securities in its sale to The Carlyle Group.

Represented SpartanNash in its acquisition of Caito.

Represented SpotOn Transact in its acquisition of EmaginePOS Inc.

Represented FastPay in its acquisition of AnchorOps.

Represented Nash Finch Company in its asset acquisition of Bag 'N Save.

Represented BlackBerry in its sale of its subsidiary, Newbay Software Limited.

 

EDUCATION

University of Chicago Law School, J.D.

Princeton University, A.B., summa cum laude


Ellen is a seasoned finance lawyer with 20+ years of experience as a partner at two top tier international law firms. She currently leads a team in New York responsible for advising Linklaters LLP on risk management issues related to the Americas and U.S. lawyers worldwide, including professional responsibility issues. She has diverse experience leading multi-lawyer teams in complex and sophisticated transactions, including for leading international investment banks. Ellen has been recognized in Legal 500 and the IFLR as a leading structured finance lawyer. She is a past member of the New York City Bar Committee on Professional Responsibility and is a regular speaker at events.


Eric A. Prager, a partner in the firm’s intellectual property practice group, assists clients with all types of intellectual property issues. His practice involves contentious and non-contentious work, including strategic counseling, due diligence of IP assets, sophisticated licensing and agreement work, and litigation. He has litigated copyright, false advertising, patent, trademark and trade secret cases in courts around the country.

 With significant experience in the area of digital content distribution and protection, Eric represents one of the Big Three record companies and a major online subscription music service in their digital content matters. 

 Eric assisted in drafting several “digital agenda” copyright treaties for the World Intellectual Property Organization, including the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.  He has also served on the U.S. Patent and Trademark Office Public Advisory Committee for Trademark Affairs.

 Eric serves as an adjunct professor at Fordham Law School in New York co-chairs the New York version of this PLI program.


Hugo Dubovoy advises on corporate compliance, M&A, cross-border transactions and complex commercial arrangements in Latin America. Mr. Dubovoy is a former president and current board member of the US-Mexico Chamber of Commerce's Mid-America Chapter. He has also served as in-house counsel to the Mexican government and to the Mexican subsidiaries of large multinationals companies. He is fluent in English and Spanish and is admitted to practice Mexican Law.  He graduated summa cum laude from the Universidad La Salle Law School (Mexico City) in 1983.

Practice focus

Mr. Dubovoy regularly advises multinational companies across all industries on foreign investment, international joint ventures, restructurings, cross- border transactions and complex commercial and licensing arrangements. These include mergers and acquisitions, structuring, starting and conducting their operations, and green field projects. Mr. Dubovoy also assists clients in doing business internationally.

Representative clients, cases or matters

  • Represented a food industry manufacturer with respect to initiating manufacturing operations in Mexico, from project structuring, land purchase, construction, regulatory approvals and permits, and hiring.
  • Represented a beverage alcohol manufacturer in its acquisition of a state-of-the-art brewery located in Mexico.
  • Represented a truck manufacturer with respect to initiating manufacturing operations in Mexico, from project structuring, land purchase, construction, regulatory approvals and permits, and hiring.
  • Advised a dairy industry manufacturer with respect to the sale of its products in Mexico.
  • Advised an air conditioning equipment manufacturer on its Latin American commercial agreements.
  • Represented a technology and defense company in relation to government procurement contracts in Mexico.
  • Represented an outdoor power equipment manufacturer with respect to terminating and replacing its Latin American distributors.
  • Represented an electronic equipment manufacturer in its joint venture with a leasing company to serve the Mexican market.
  • Advised a tobacco company on its acquisition of a Mexican cigarette manufacturer.
  • Represented a major financial institution coordinating complex commercial and criminal litigation in Mexico.


Jack Bodner is a partner in the firm’s Mergers and Acquisitions and Corporate Governance groups. He has more than 20 years of experience in advising acquirers, targets, investors, boards of directors, special committees, and investment banks in domestic and cross-border negotiated and unsolicited mergers and acquisitions transactions. 

Mr. Bodner’s practice also includes counseling clients on corporate and governance related matters, including compliance and disclosure issues, shareholder rights plans and proxy contests, and other defense and takeover measures.  Mr. Bodner received his J.D. from New York University School of Law, where he was elected Order of the Coif, and his B.A., magna cum laude, from New York University.


Joe Castelluccio is a partner in Mayer Brown’s New York office and a member of the Corporate & Securities practice. He helps clients balance risks and opportunities with a combination of legal acumen and business experience. As a former investment banker and finance professional, Joe focuses his practice on complex, cross border transactions for which he is:

  • A trusted advisor to US and multinational companies for M&A, joint ventures, equity transactions and other corporate matters;
  • An experienced deal team leader for complex, multi-jurisdictional transactions;
  • A seasoned negotiator and project manager; and
  • Knowledgeable in a broad range of sectors, including financial services, technology, insurance, industrials, chemicals and infrastructure.

In addition, Joe is the co-leader of Mayer Brown’s transactional liabilities insurance practice. In this capacity, he draws on his M&A experience in representing underwriters in issuing representations and warranties insurance and other types of transactional insurance in connection with M&A deals.

Joe is also a lecturer in Fordham Law School’s Transactional Skills for Global Legal Practice program and a faculty member for the Practising Law Institute’s seminar on Acquiring or Selling the Privately Held Company. 

Prior to attending law school, Joe worked at Prudential Securities as an analyst in the investment banking group and as an associate in the equity capital markets group. While attending law school, Joe worked in the division of enforcement at the Financial Industry Regulatory Authority.

Joe is a member of the Legal Advisory Council of Sanctuary for Families, the leading nonprofit organization in New York dedicated exclusively to serving the needs of domestic violence victims, sex trafficking victims, and their children. He is also a member of the Northeast Advisory Board for Youth About Business, a national youth leadership development organization that introduces high school students from diverse and underserved communities to the world of business through intensive summer M&A programs.


Joe Ehrlich joined the Owens Group in 2004 and represents the third generation of the Owens family to work at the firm. He leads its Private Equity and Financial Services Practice Area. Joe is a known expert on Representation & Warranties and Transactional Insurance products, frequently giving presentations and educating lawyers and other professionals.

Prior to joining the Owens Group, Joe spent the early part of his career practicing corporate/M&A law at O’Melveny & Myers LLP and its predecessor, O’Sullivan Graev & Karabell LPP. During that time, he assisted clients in evaluating, structuring, negotiating, and consummating private equity transactions.  

Joe graduated cum laude from Columbia University with a B.A. in Classics in 1992. He received his J.D. from New York University’s School of Law in 1997.

Joe also serves on both the Owens Group Board of Directors and its Advisory Committee. Among other philanthropic activities, Joe is a member, and the immediate past President, of the NYU Law Alumni Association Board. He also volunteers as Chair of the Columbia University’s Benefits Committee, is a member of the Columbia Alumni Association (CAA) Strategic Planning Committee and serves on several other committees of the CAA. At the Columbia Club of New York, Joe is a board member and chairs the Membership Committee. 


Kimberly A. deBeers is a partner in the Chicago office of Skadden, Arps, Slate, Meagher & Flom LLP.

Ms. deBeers has a diverse corporate practice with extensive experience in the area of mergers and acquisitions, joint ventures, securities law and general corporate law matters. She regularly represents private equity firms, as well as various private and public corporate clients, on a wide variety of acquisition and sale transactions; leveraged buyouts, private equity and venture capital transactions; spin-offs; and recapitalizations, joint ventures and other financing transactions.

Ms. deBeers repeatedly has been selected for inclusion by Chambers USA and has been recognized in The Best Lawyers in America. She also was named as one of the 2014 “BTI Client Service All-Stars” by The BTI Consulting Group for providing outstanding client service. Ms. deBeers speaks yearly at the Practising Law Institute on securities issues relating to mergers and acquisitions. In 2016, Ms. deBeers was named one of the “Most Powerful and Influential Women” in Illinois by the National Diversity Council.


Mark Poerio is senior counsel in the DC office of the Wagner Law Group. Throughout his 30+ years of private practice (most with Wall Street law firms), Mark has  worked almost exclusively with business executives, with his focus being on executive compensation and ERISA fiduciary matters, especially from a business, governance, tax, labor, finance, securities, and litigation perspective.  Mark is Chambers-ranked, recognized by SuperLawyers, and for over 10 years has taught executive compensation classes at Georgetown Law.  Mark recently completed his terms as President of the American College of Employee Benefits Counsel (ACEBC), and as an executive board member of the American Benefits Council. 

In addition to representing companies, executives (individually) and compensation committees, Mark also has extensive experience with changes in corporate control, employee stock ownership plans (aka ESOPs), and tax exempt organizations. For the latter, his practice ranges from general governance to executive compensation -- e.g. Code section 457(f) and 4958 tax planning and correction.

 

EDUCATION

Cornell Law School, J.D., 1984 (cum laude)

University of Virginia, B.A., 1980 (cum laude)

Mark's Teaching and Publications

Since 2007, Mark has taught courses at Georgetown Law – with one course being focused on executive compensation, business, and governance, another on ESOPs, and another on the intersection of benefit plans and employment-related agreements with restrictive covenants such as non-competes. Associated with these, he maintains www.executiveloyalty.org.

 

NOTABLE PUBLICATIONS  

"Too Much Employer Stock? Don't Ignore Diversification" (Law360, 7/12/2018).

"New Year, New Stock Plan" (Bloomberg BNA, 2/21/2018, Poerio)

"Hitting Workplace Harassers Where It Hurts" (National Law Journal, 12/29/2017, Poerio et al).

"Spin-off Transaction Playbook" (NYU Law Review, with Towers Watson, 2013).  

U.S. Executive Compensation Litigation: Cannons to the Right . . . and to the Left” (International Pension Lawyer,, April 2013)  

“What Private Equity Managers Need to Know to Limit Their ERISA Obligations for Portfolio Company Pension Plans” (Bloomberg BNA, Nov. 2012).  

Candor for Compensation Committees” (Corporate Board Member, 11/2011). 

Crossing the Pond in Search of Better Executive Compensation Practices” (Corporate Governance Advisor, 3/10/2011).  

Executive Pay and Loyalty: From Velvet Fist to Iron Glove” (Corporate Governance Advisor, 1/2010).  

"Long-term Incentives and Golden Handcuffs in China" (Poerio et al, ChinaFocus, 2008).  

"Say Hello to Smart Goodbyes" re ERISA-fying Severance Practices (National Law Journal, 2008, Poerio et al).  

"Executive Insecurity" (Bloomberg BNA, 2008, Poerio et al).

 

PROFESSIONAL AND COMMUNITY INVOLVEMENT

American Benefits Council – Executive Board Member (2015-2018)

American College of Employee Benefit Counsel – Board Member and Immediate Past President (formerly ACEBC's President, Vice-President and Treasurer).  

Georgetown Law School -- Adjunct Professor (2007-present)  

Maryland Association of Social Service Boards -- Past Vice-Chair and Head of Legislative Committee; Pro bono Counsel for federal tax matters since 2004.  

MASSB Foundation -- Founder and Trustee (raising over $1 million for social services involving child protection and family preservation).

 


Matthew Goodman is a member of the Firm’s General Practice Group and represents clients in a range of domestic and international mergers and acquisitions and private equity transactions, including mergers, stock purchases and asset acquisitions in a variety of industries, including financial institutions, consumer goods and information technology.

Selected representations include advising GGP in its $28 billion acquisition by Brookfield Property Partners, Stryker Corporation in its $2.775 billion acquisition of Sage Products from Madison Dearborn Partners and Anheuser-Busch InBev in a variety of strategic acquisitions. Additionally, Matthew has advised Goldman Sachs and Morgan Stanley as financial advisers in several significant transactions.

Matthew has also been involved with pro bono projects, including assisting in a simulated mergers and acquisitions transaction as part of a program put on by a New York youth organization and is a member of the Leadership Council of Lawyers for Children.

Matthew received his Juris Doctor degree from the University of Michigan Law School and graduated from McGill University with a Bachelor of Arts degree.


Michael Traube is a partner in the New York, NY office of Hughes Hubbard & Reed LLP. Michael has served as lead counsel on numerous public and private M&A transactions.  He has substantive experience representing companies in a broad range of corporate matters, including public and private mergers, proxy contests, joint ventures and strategic investments, Section 363 and other asset deals, carve-out transactions, private equity deals, corporate restructurings, reclassifications and corporate finance.

Michael has been recognized by The Legal 500 2018 as a Next Generation Lawyer: M&A Middle Market.


William B. Sorabella is a Corporate/M&A partner based in New York City.  His practice focuses on the representation of principals in merger and acquisition transactions, primarily involving public companies.  He regularly represents corporate buyers and sellers, private equity funds and special committees in the purchase, merger and sale of companies and divisional carve-outs and in the formation and dissolution of joint ventures.  He also frequently represents financial advisors in similar transactions.  He also advises clients on corporate governance matters.

William has twice been named as one of the “Dealmakers of the Year” by The American Lawyer.  The 2010 edition spotlighted his work on behalf of 3G Capital Partners in its $4.0 billion acquisition of Burger King Holdings, Inc.  The 2012 edition spotlighted his work on behalf of Blum Capital Partners and Golden Gate Capital in their $2.0 billion acquisition of Collective Brands Inc.  William has also been named as a “Dealmaker of the Week” by The American Lawyer based on his representation of 3G Capital Partners in its acquisition of H.J. Heinz Company, together with Berkshire Hathaway Inc.

William has been recognized by Chambers USA: America’s Leading Lawyers for Business in Corporate/M&A for every year since 2013, which noted that he is a “very careful and meticulous” lawyer who “leaves no stone unturned.”  Sources say he has “excellent interpersonal skills” and “gets things done in a variety of environments.”  William was recognized in The Legal 500 U.S. for his work in M&A: mega-deals (1bn+) as an attorney who “provides critical support and is very knowledgeable on M&A matters.”  William has been selected and profiled as a “Rising Star” and twice as a “M&A MVP” by Law360 and named as a New York “Rising Star” by Super Lawyers.  His innovative work on transactions has also been recognized by several other publications, including The Financial Times in its U.S. Innovative Lawyers Report, The Deal Magazine in its annual “Deals of the Year” and The New York Times DealBook in its annual “Deal Makers at the Head of the Class” awards article.

Recent clients include corporate clients Tronox Limited, Murray Energy Corporation, Restaurant Brands International Inc., Huntsman Corporation, Exelon Corporation, Civitas Solutions, Inc., Exela Technologies Inc., Micro Focus International plc, Black Knight Financial Services Inc., Sagent Pharmaceuticals, Inc. and Innophos Holdings, Inc.; private equity sponsors 3G Capital Partners Ltd., GTCR LLC, The Carlyle Group and L Catterton; and numerous investment banks.  He has worked on matters across a wide range of industries, including healthcare, pharmaceuticals, industrials, chemicals, energy, food and beverage, retail, software, hardware, financial services and hospitality.

He is a graduate of Bowdoin College, summa cum laude and recipient of the Leonard A. Pierce Memorial Prize, and Georgetown University Law Center, cum laude.


Ben is a Managing Director in the Healthcare Investment Banking Group and a member of the Mergers & Acquisitions Group, based in New York.  Ben has advised on over $500 billion of announced transactions across a variety of mergers, divestitures, unsolicited M&A, corporate defense and other structured transactions.  Prior to joining Goldman Sachs as a Managing Director, Ben was a Managing Director in the Mergers & Acquisitions Group at J.P. Morgan. 

Ben earned a BA in Business Economics, magna cum laude, from the University of California, Los Angeles and an MBA from the University of Chicago.  He resides in New York City with his wife and two sons.