Morton Pierce is a partner at White & Case in the M&A practice group, based in New York and has more than 40 years of M&A experience. Mort has been recognised numerous times as a leader in the fields of M&A and corporate governance, including in Chambers Global (2018), Chambers USA (2019), The Legal 500: US (2019) and Best Lawyers (2019). Mort was named “M&A Legal Advisor of the Year” by The M&A Advisor (2015) and “MVP for Mergers & Acquisitions” by Law360 (2015). Mort received his JD from the University of Pennsylvania Law School in 1974. He attended the University of Oxford from 1974 to 1975, and received his BA from Yale University in 1970.
WHAT ATTRACTED YOU TO A CAREER IN M&A?
As the M&A market developed in the 1980s, many of the tactics and procedures that are well developed today were being tried and tested then. Lawyers were much more integral in developing the strategy to consummate a deal than they were in other practice areas, such as finance, and I believe that is still true today. Also, in M&A deals lawyers had, and still have, more contact with senior executives and the Board of directors than lawyers in other practice areas do, and that was attractive to me. In addition, to be able to negotiate a transaction – especially representations, warranties and covenants – an M&A lawyer has to acquire a real understanding of the client’s business, which was also interesting to me.
HOW HAS THE ROLE OF AN M&A LAWYER CHANGED SINCE YOU STARTED PRACTISING?
I think the role of the M&A lawyer has remained constant. The lawyer is an integral part of the team, together with management and the financial adviser, in developing and implementing the strategy to consummate a transaction.
WHAT DO CLIENTS LOOK FOR IN AN EFFECTIVE M&A LAWYER?
An effective M&A lawyer has to be knowledgeable and familiar with the issues which typically arise in a transaction and the ways in which those issues are generally resolved. Clients expect that basic knowledge and also expect someone who can advocate logically and firmly for their position while maintaining reasonable relationships with other parties to the transaction. An effective lawyer has to recognise issues, and find solutions to those issues, in order to achieve the objectives of the client. What clients want is a lawyer who will achieve their objectives in as efficient a manner as possible.
YOU HAVE RECENTLY BEEN FOCUSING ON PUBLIC M&A DEALS. WHAT CHALLENGES DO YOU FACE IN THIS AREA COMPARED TO MANAGING PRIVATE DEALS?
The primary difference between a public and a private deal, especially when representing a seller, is counselling the directors, with respect to their fiduciary duties, to ensure that the shareholders are receiving the best deal under the circumstances and to insulate the transaction from litigation. Another major difference is the time and attention paid to deal protection and closing conditions to ensure, to the maximum extent possible, that the deal that was negotiated is successfully consummated.
HOW IS AN INCREASED PREVALENCE OF SHAREHOLDER ACTIVISM AFFECTING THE M&A MARKET?
Shareholder activism has affected the M&A market. When an activist takes a position in a company, it prompts the company to review its defence profile to see if it is vulnerable to tactics such as an attempt to immediately remove directors. Activists often advocate for the sale of all or parts of a company, so a board must engage in an analysis of whether that type of M&A activity makes sense and, if so, when. If the board determines not to engage in a sale, it should be prepared to defend its position to its shareholders – and may be forced to do so if the activist seeks to replace some or all members of the board in a proxy contest. If a board does decide to sell the company, whether or not prompted to do so by an activist, it must also be mindful of the response of activist shareholders to any deal announced. An activist shareholder that does not like the terms of a transaction can attempt to solicit votes against approval of a transaction. In announcing a transaction, a board must carefully consider its shareholder base and the likelihood of receiving shareholder approval for a transaction.
WHAT ARE THE MAIN COMPLICATIONS THAT LAWYERS FACE WHEN HANDLING CROSS-BORDER M&A PROCEEDINGS?
In a cross-border transaction, lawyers must determine what foreign regulations may apply to the transaction, and whether or not those are compatible or conflicting with US regulations. One particular area of concern is antitrust regulation, which requires coordination of counsel in the various jurisdictions where approval is required. Also, legal standards with respect to the deal protection provisions are often different. Another issue is differing norms, apart from legal requirements, in different jurisdictions. The representations, warranties and conditions in a typical US merger agreement are not necessarily the norm in foreign jurisdictions.
LOOKING BACK OVER YOUR CAREER, WHAT HAS BEEN YOUR PROUDEST ACHIEVEMENT?
It is difficult to choose one deal or event as my proudest achievement. I take great pride in the sum total of my career, to which I continue to add; the volume and complexity of the transactions we have consummated; and the number of clients who have entrusted us with their most important transactions on multiple occasions.
WHERE, IN YOUR OPINION, DOES THE FUTURE OF THE PRACTICE AREA LIE?
I believe that M&A as a practice area will continue to grow. The number of private equity funds continues to grow, and it is their business to buy and sell companies. With respect to strategics, companies constantly evaluate their assets and sell or spin off those no longer deemed to be core to their business. There will always be a steady stream of acquisitions as long as companies determine that it is more cost-effective to acquire rather than build a business.