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Editor's Selections from The Legal 500 United States...
The market for asset finance continues to improve, particularly for the aviation side. The market is finding room for increasingly innovative products, including the use of Enhanced Equipment Trust Certificate (EETC) structures, as well as a greater number of asset-backed securitizations. The need for innovation has ensured a continued flight to quality when it comes to which law firms get instructed. Those with strong client bases among export credit agencies and aircraft lessors report robust activity. The picture is more bleak for the ship finance side, which remains in the doldrums. Nevetheless, the distressed nature of the industry has attracted work from clients in the private equity and hedge fund industry.Read more...
Baker Botts L.L.P. is ‘one of the premier firms’ and has a large and experienced energy litigation team, split across Houston and Washington DC as well as Moscow. The group ‘gets the job done’ and is complemented by a strong regulatory practice. The firm is best known for its comprehensive oil and gas expertise at state and federal level, and is handling an increasing number of high-profile disputes in the shale sector. William Kroger, who was appointed department co-chair in 2012, is advising Murphy Oil Exploration & Production and Marathon Oil in two discrete, wide-reaching disputes concerning their investments in America’s largest crude oil shale play at Eagle Ford, Texas. Kroger and Travis Sales are representing Shell and BASF Corporation in disputes with PEMEX, Mexico’s national oil company, which alleges that these and other US companies purchased hydrocarbons stolen from Mexico and smuggled over the border. The firm’s presence is growing in the electricity market and Brooksany Barrowes is representing the Midwest Independent System Operator (MISO) transmission owners in opposing controversial utilities’ proposals pertaining to the issue of power portability. Fellow department co-chair Mark Robeck and Greg Copeland, who is ‘one of the best energy litigation lawyers’, continue to defend Reliant Energy against allegations of price manipulation during the 2000-01 California energy crisis. Macey Reasoner Stokes is leading a team representing CenterPoint Energy Houston Electric in its appeal regarding rate changes. The practice is also increasingly active in mining, technological and environmental disputes: it represented BP Alternative Energy in a nuisance claim relating to the construction and operation of a wind farm, and the possibility of a larger wind farm being built nearby in northern Texas. Other clients include Ameren Corporation, ExxonMobil, Enbridge, GenOnEnergy, Repsol Energy, Jones Energy, and Hydro-Québec. John Anaipakos and senior associate Jason Newman are recommended. Elaine Walsh joined the practice from Kirkland & Ellis LLP and Russell Lewis was promoted to the partnership.
Many types of firms, from large IP boutiques to full-service international law firms, populate the top end of the intellectual property market. Indeed, full-service firms are increasingly specialising in IP to capitalize on the growing workload in global brand protection, particularly in the emerging technology sector. General practice firms also dominate IP litigation work, as they often offer stronger trial capabilities to handle leading, higher-value cases in court proceedings. Smaller IP boutiques continue to struggle in an increasingly competitive market.
INVESTMENT FUND FORMATION AND MANAGEMENT
The global hedge funds industry, which now numbers approximately 8,000 participants managing $2.2 trillion in assets, was faced with another mediocre year, with industry returns up by 3% in 2012, a far cry from the 18% rise experienced by the S&P 500 index. Despite market volatility in Europe and elsewhere, global macro hedge funds continued to be a key market driver, representing 34% of all fund launches in 2012. The traditional "long/short" strategy, which has long been the dominant strategy for hedge funds, is gradually losing its lustre. In addition, the market has seen a proliferation of seed funds, single-investor funds, and managed account platforms. The result is that legal advisors are increasingly being called on to come up with novel products and fund structures for their clients. Regulatory issues continue to dominate, both at home and abroad. The Dodd-Frank Act, which imposed registration requirements for hedge funds with assets over $150m, The Volcker Rule, which has brought about spinouts of financial institutions’ proprietary trading platforms, and Europe’s Alternative Investment Fund Manager’s Directive (AIFMD) have kept legal regulatory compliance advisors busy throughout 2012. In addition, the elimination of the Commodity Futures Trading Commission’s (CFTC) sophisticated investor exemption from commodity pool operator registration and related exemption from commodity trading advisor registration has also generated a significant amount of interest from funds falling under this provision. Increased transparency in the hedge fund industry has driven new reporting requirements arising from the adoption of Form PF, which requires registered investment advisors to report information ranging from liquidity levels, counterparty reporting, and portfolio company statistics. Practices identified in these rankings are those that have the capability to advise on fund formation, as well as restructuring and regulatory managers. Work for hedge fund managers is given more emphasis, although those firms that have significant investor-side practices are duly noted. As with all the tables, top-quality advice on high-end funds are emphasized, although volume of work carried out is also taken into account.
LABOR AND EMPLOYMENT
According to the US Department of Labor (DOL), ERISA is a federal law that sets minimum standards for pension plans in private industry. ERISA requires plans to regularly provide participants with information about the plan including information about plan features and funding; sets minimum standards for participation, vesting, benefit accrual and funding; requires accountability of plan fiduciaries; and gives participants the right to sue for benefits and breaches of fiduciary duty. ERISA also guarantees payment of certain benefits through the Pension Benefit Guaranty Corporation (PBGC), a federally chartered corporation, if a defined plan is terminated. The DOL and Employee Benefits Security Administration (EBSA) enforces ERISA, and it is administered by three federal agencies – the DOL, the PBGC and the Internal Revenue Service (IRS). Over recent years plaintiffs’ class action lawyers have targeted plans, their employer sponsors and their fiduciaries, and the US court system has been rammed with lawsuits over pension and 401(k) plans, long term disability and severance benefits, and medical cutbacks. The best defense counsel knows what events trigger litigation, how the courts interpret fiduciary obligations and what best practices to employ to minimize liability risk. There is debate at to which is best – an ERISA lawyer who can litigate or a trial lawyer who understands the rules of ERISA. Both models have their merits and take their place in the rankings.
If international arbitration is ‘the dispute resolution method of choice in a globalising world’, then the burgeoning workload is the subject of ever increasing competition. More and more firms are focusing on the sector, increasing the competition for talented and experienced practitioners, even as novel funding models, such as third party financing, continue to drive overall volume. In the US, the imminent retirement of many key players of the generation that saw the practice comes to prominence is likely to cause shifts in the market.
MEDIA, TECHNOLOGY AND TELECOMS
It has been another busy year for the hi-tech and telecoms sectors, driven by technology and market convergence, a challenging economy and an uptick in transactional activity after the election. Major themes include the digitization of content across multiple platforms and different ways of delivering, promoting and utilizing content, interactive, mobile and location-based applications. Social media and financial technology are hot topics, both of which have strong data privacy and security connotations. While organizations continue to leverage technology through outsourcing and joint ventures, these initiatives are increasingly seen as strategic moves, to boost efficiency and manage costs. Cloud computing – and the issues it raises – is still bringing in work for lawyers. Transactional activity in the fast-moving telecoms and broadcast sectors has continued apace with lawyers focusing on big-ticket M&A and international joint ventures that support global consolidation as well as IPOs and complex financing deals. The regulatory environment focuses on compliance, online data collection and privacy, data protection and security, particularly in highly-regulated sectors such as financial services and healthcare, as well as regulatory and ownership issues in the telecoms and broadcast sectors which have sometimes prevented or delayed big-ticket deals.
MERGERS, ACQUISITIONS AND BUYOUTS
For much of 2012, the United States M&A market was a largely, changeable environment. Although the pipelines of several M&A groups began the year on a positive note, transaction levels petered out around the summer. Nonetheless, many practitioners reported a wave of dispositions in the last quarter of the year, especially in the middle-market, which was prompted by the prospect of capital gains tax rises, designed to reduce the budget deficit.
REAL ESTATE AND CONSTRUCTION
The US construction market has been slowly recovering over the past few quarters, and law firms are seeing their clients bidding more aggressively for work. This upward trend appears to be driven largely by the energy sector and by the large public works projects launched by the US government as part of its various economic stimulus measures. In addition, and in part because of the continued boom in the energy and infrastructure sectors, certain local markets such as Texas and Northern California are seeing strong activity. Demand from certain international markets is also helping to ease the pressure on law firms as they continue to contend with a suppressed and competitive domestic market.
With the uncertainty of the market still tangible, transactional work continues to be fairly slow. Though some firms have noted a pick-up in mid-market transactions, the general market remains unpredictable with flurries of activity but no clear improvement. Businesses and firms alike are more cost-conscious than ever and so deals have become increasingly tax intensive, with clients demanding value and prioritizing tax efficiency. Leading up to the ‘fiscal cliff’, firms across the board witnessed a rush of deals completing towards the end of 2012. Clients were keen to take advantage of lower tax rates prior to the expiry of the Bush Tax cuts and more generally to close deals quickly due to the uncertainty of how tax rules and regulations would change in 2013.