Ethan A. Klingsberg’s practice comprises corporate, public company board of directors, M&A and SEC matters.
He has been repeatedly named a “BTI Client Service All-Star” based on the survey of general counsels of the Fortune 1000, and “Most Valuable Practitioner” in M&A, as well as having been selected, for a number of different assignments, as Dealmaker of the Year, Dealmaker of the Week and Dealmaker in the Spotlight by The American Lawyer and The Deal, and as a recipient of the Burton Award for Legal Achievement for writing on fiduciary duties. He is recognized as one of the country’s leading corporate lawyers in every major guide.
Ethan has helped a number of companies prevail against, manage and work constructively with “activist stockholders,” including in scenarios where these stockholders have board seats, are seeking board seats and do not have board seats. Experience includes responding to Brave Warrior, Corvex, Duquesne, Elliott, Franklin Mutual, Harbinger, Icahn, JANA, Paulson, Pershing Square, Relational, Starboard and Trian.
Ethan joined the firm in 1994 and became a partner in 2001.
Previously, he clerked for the Honorable Robert P. Patterson, Jr. of the U.S. District Court for the Southern District of New York, served as Counselor to Chief Justice László Sólyom of the Hungarian Constitutional Court, and developed and participated in law reform projects in Eastern Europe under the auspices of the Soros Foundation and, later, Central European University.
Recent Clients: Google, Verizon, Goldman Sachs, Lowe’s, Walgreens Boots Alliance, Akamai Technologies, Dun & Bradstreet, American Express, Stanley Black & Decker, Whirlpool, Tiffany & Co., Kindred Healthcare, Western Digital, Ciena, Nasdaq, Keysight Technologies, Timken Co., Agilent Technologies, Synchrony Financial, International Flavors & Fragrances, Samsonite, Family Dollar Stores, Stora Enso, FEMSA
Selected Committees of Independent Directors: TerraForm Power, Interactive Data Corp, Higher One Holdings, Syntel, Trans World Entertainment, UGC Europe
Selected Conflict M&A Transactions/Affiliate Buyouts: Cox Communications, ResCare, Fox Entertainment, CNA Surety, Alfa Corporation, Kinder Morgan, Coca-Cola Enterprises, Aramark, PepsiAmericas
Akamai Technologies in its cooperation agreement with Elliott Management and other governance and shareholder value initiatives.
Google in its $1.1 billion agreement with HTC relating to the smartphone design business.
Tiffany & Co. in its settlement agreements with JANA Partners and Francesco Trapani, as well as other governance matters.
- Keysight Technologies in its $1.6 billion acquisition of Ixia.
Stanley, Black & Decker in the divestiture of its global mechanical security business to the dormakalba group.
Verizon in its takeover of Fleetmatics.
Higher One in the break-up and negotiated tender offer for the company.
Samsonite in its acquisition of Tumi.
Family Dollar in its cash/stock acquisition by Dollar Tree and rejection of the hostile tender offer by Dollar General.
Google in its acquisitions of Motorola Mobility, Waze, AdMob, Admeld, Wildfire, ITA Software, Skybox, bebop, Orbitera and numerous other M&A and governance matters, including the restructuring of Google into Alphabet and Other Bets; and numerous matters involving Other Bets including Temasek’s investment in Verily, merger of the Terra Bella satellite unit with Planet Labs, and divestitures of Motorola’s mobile devices business to Lenovo and Motorola’s “Home” business to Arris.
Kindred Healthcare in its hostile tender offer (and threatened proxy contest) to acquire Gentiva Health Services and in the subsequent friendly, negotiated agreement to acquire Gentiva, the spin-off and merger of Kindred’s pharma business, and numerous other M&A and governance matters.
Stanley Black & Decker in its unsolicited tender offer to acquire Niscayah (successfully topping an existing agreement to sell the company), sale of the global Hardware & Home Improvement business, sale of the global Mechanical Security business, and numerous other M&A matters.
The Special Committee of Interactive Data Corp in the company’s LBO by a private equity consortium (the largest LBO of that year).
The Home Depot in its acquisitions of Interline Brands, Red Beacon, BlackLocus, Hughes Supply and all of the company’s other major acquisitions.
Keysight Technologies in its acquisition of Anite.
Agilent Technologies in its acquisition of Dako.
Alpha Natural Resources in a number of transformative stock mergers with other public companies.
Acquiror consortia in LBOs of Ness Technologies, Burger King, Keane and others.
Ethan has had essays and articles published in The Deal, Corporate Board Member, Directors Monthly, ABA Business Law, M&A Lawyer, Harvard Law School Forum on Corporate Governance, Deal Lawyers, The M&A Journal and Insights and was interviewed in a video on the role of insider stockholders in M&A transactions for The New York Times – Deal Book.
“Activism in 2018,” Harvard Law School Forum on Corporate Governance (January 29, 2018)
“The Significance for Boards and Managements of the JANA/CalSTRs Letter to Apple,” Harvard Law School Forum on Corporate Governance (January 19, 2018), cited by Forbes as a “must-read” for executives and directors
“Setting the Record Straight: Regulation G Doesn’t Apply to M&A Forecasts,” Deal Lawyers, Volume 11, No. 6 (November 2017)
“PRC Acquirors: How M&A Agreements Handle Risks & Challenges,” Deal Lawyers, Volume 11, No. 6 (November 2017)
“Index Eligibility as Governance Battlefield: Why the System is Not Broken and We Can Live With Dual Class Issuers,” Harvard Law School Forum on Corporate Governance (July 5, 2017)
“Trian and the Bank of New York Mellon,” The M&A Journal, Volume 17, No. 8 (July 2017)
“Changes in Asset Management,” The M&A Journal, Volume 17, No. 8 (July 2017)
“Impediments to Stealth Acquisitions by Activists,” The M&A Journal, Volume 17, No. 7 (June 2017)
“Balancing Concessions to Activists Against Responsiveness to the Broader Shareholder Base,” Harvard Law School Forum on Corporate Governance (April 4, 2017)
“Prevent Merger Benefits From Becoming Disabling Conflicts,” Law360 (September 22, 2016)
“New Guidance on the Impact of SEC Beneficial Ownership Reporting and HSR Notification Regimes on Shareholder Activism and Engagement,” Harvard Law School Forum on Corporate Governance (August 3, 2016)
“What the ValueAct Complaint Means for Activism Tactics and the SEC’s Beneficial Ownership Reporting Regime,” Harvard Law School Forum on Corporate Governance (May 18, 2016)
“Defenses Available to Directors and Financial Advisors,” Harvard Law School Forum on Corporate Governance (May 11, 2016)
“M&A Agreements and the Challenges of PRC Acquirors,” Harvard Law School Forum on Corporate Governance (April 18, 2016)
“What the 2016 BlackRock Letter Means for Shareholder Engagement and Disclosure Practices,” Harvard Law School Forum on Corporate Governance (February 24, 2016)
“Calm, Down, Stay Prepared – A Non-Alarmist Guide to Stockholder Activism,” The Deal (February 8, 2016)
“Boards & Their Financial Advisors: What Do Recent Delaware Opinions Mean for Processes & Relationships?” Deal Lawyers (January-February 2016)
“Roundtable Discussion on Resolving Boardroom Disputes, Corporate Disputes” (October-December 2015)
“Risks and Opportunities of Hedge Fund Activism,” The Corporate Board (May 2015)
“Forum: Preparing for and tackling shareholder activism,” Financier Worldwide (May 2015)
“Wake-up Call for Private M&A Deal Structuring,” Deal Lawyers (March-April 2015)
“Be Wary of the Path to the Business Judgment Rule,” Harvard Law School Forum on Corporate Governance (July 11, 2013)
“Traps to Consider: Delaware’s Merger Statute & Ratification Amendments,” Deal Lawyers (November-December 2013)
“Examining Data Points in Minority Buyouts: A Practitioners’ Report,” Delaware Journal of Corporate Law (May 1, 2012)
“The El Paso/Kinder Morgan Opinion: Further Delaware Guidance on Investment Banker Sell-Side Conflicts,” The M&A Lawyer (with Victor I. Lewkow and David Leinwand) (April 2012)
“Board Focus 2012,” ABA Business Law (February 2012)
“How a Hotel Case May Affect Buyouts,” The New York Times (January 21, 2011)
“Lessons for Directors from Recent ’Change in Control’ Sagas,” Corporate Board Member (December 2010)
“Defining the Rules of the Road for Differential Consideration in M&A Transactions,” Deal Lawyers (January-February 2010)
“New Investments by a Significant Stockholder—Guidelines for Boards,” The M&A Lawyer (April 2009)
“How to Settle Insurgencies and Secure Stockholder Votes Without Creating New Exposures,” Deal Lawyers (March-April 2008)
“Fiduciary Duty and Fraud Risks from Competing Sets of Internal Financial Reports and Projections: Guidance for Target Boards and Deal Teams,” The M&A Lawyer (February 2008)
“The Need for Careful Choreography in LBOs,” M&A Lawyer (2007)
“Managing the Variables in Minority Buyouts,” Insights (October 2006)
November 8, 2018
Panelist, “Corporate Activism and Engagement: The New Normal,” PLI’s 50th Annual Institute on Securities Regulation
June 5, 2018
Panelist, “Developments in Public Company M&A,” 17th Annual International Mergers & Acquisitions Conference of the International Bar Association
February 15, 2018
Chair, the fourth annual M&A, Antitrust & the Board Room conference in San Francisco (recap posted here)
March 30, 2017
Moderator for keynote presentation with Ed Garden, the Chief Investment Officer and founding partner of Trian Partners (one of the world’s most successful activist funds), and Gerald Hassell, the Chair and CEO of The Bank of New York Mellon Corporation (which has undergone significant internal transformation in recent years while Mr. Garden has served on its board and Trian has been a shareholder) at the Tulane Corporate Law Institute
December 9, 2016
Panelist, “Preparing For Shareholder Activism: What You Need To Be Doing Now 2016,” Annual PLI seminar
June 7, 2016
Moderator, “M&A agreement structuring and foreign investment controls – CFIUS and analogous regimes,” 15th Annual International Mergers & Acquisitions Conference of the International Bar Association
May 18-19, 2016
Participant, The 2016 M&A Roundtable – New York City, organized by Berkeley Center for Law, Business & the Economy and Kirkland & Ellis
March 11, 2016
Panelist, “Shareholder Activism: What Must Companies Be Mindful Of in 2016?” at Georgetown Law Corporate Counsel Institute 2016
January 29, 2016
Moderator and Leader, Antitrust, IP, Board Processes, and M&A in 2016: Challenges and Conundrums for the West Coast
October 28, 2015
Moderator and Panel Chair, “Activism in 2016: Understanding the Dynamics of the Changing Landscape and Changing Roles” at 47th Annual Securities Regulation Institute
September 30, 2015
Panelist, PLI’s Preparing For Shareholder Activism: What You Need To Be Doing Now 2015
June 10, 2015
Panelist, “M&A transactions and anti-corruption laws,” 14th Annual International Mergers & Acquisitions Conference of the International Bar Association
January 23, 2015
Moderator and Leader, Antitrust, Governance, M&A in 2015: Challenges and Conundrums for the West Coast
November 18, 2014
Panelist, 13th Annual Corporate Governance and Disclosure Seminar
November 11, 2014
Leader, Transactions, Tactics & Opportunities: Israel and Global Dealmaking
November 05, 2014
Panelist, “The Developing Playbooks for Activists’ Challenges and Corporate Responses” at 46th Annual Institute on Securities Regulation
March 10, 2014
Event Chair and Moderator, The Conference Board Governance Watch: Activism’s Chemistry with Non-Activist Investors and the Role of the Board
May 22, 2013
Participant, Harvard Law School M&A Roundtable
October 17, 2012
Panelist, Society of Corporate Secretaries & Governance Professionals 2012 Regional Fall Conference
June 14, 2012
Moderator, The Conference Board’s Annual Directors’ Roundtable
February 23, 2012
Panelist, PLI’s Going Private 2012: Doing the Deal Right
November 02, 2011
Moderator and Panelist, The Conference Board’s Shareholder Activism in Uncertain Times
June 07, 2011
Panelist, Bloomberg: Financial Advisors and Conflict of Interest in M&A Transactions
February 24, 2011
Panelist, PLI’s Going Private 2011: Doing the Deal Right
October 07, 2010
Panelist, Seventh Annual Institute on Corporate, Securities and Related Aspects of Mergers & Acquisitions
September 13, 2010
Panelist, The SEC’s New Proxy Access Rules: What Comes Next?
February 25, 2010
Panelist, PLI’s Going Private 2010: Doing the Deal Right
February 26, 2009
Panelist, PLI’s Going Private 2009: Doing the Deal Right