Practice Highlights

Behind the headlines of the most talked about deals and cases of 2015.

{ Cahill Gordon & Reindel Est. 1919 }

Amarin Wins Off-Label Ruling Against FDA — The Wall Street Journal

A Cahill litigation team prevailed on behalf of Amarin Corporation plc ("Amarin") and a group of physician plaintiffs in Amarin Pharma Inc. et al. v. Food and Drug Administration et al, a closely watched First Amendment lawsuit filed in the United States District Court for the Southern District of New York.More

The precedent-setting case challenged the constitutionality of the FDA's restrictions on off-label promotion by Amarin of its lead product, Vascepa® (icosapent ethyl) capsules. Amarin filed the case preemptively to shield itself from FDA prosecution for promoting to healthcare professionals a body of truthful and non-misleading information related to Vascepa that goes beyond current FDA-approved labeling for the drug. Presenting medical professionals with truthful information, the Company argued, was constitutionally protected speech, and further argued that FDA restrictions limiting such speech would prevent most physicians from making fully-informed treatment decisions to high-risk cardiovascular disease patients.

On August 7, 2015, U.S. District Court Judge for the Southern District of New York, Paul A. Engelmayer, granted Amarin's application for preliminary relief, declaring that "Amarin may engage in truthful and non-misleading speech promoting off-label use of Vascepa," and that, "such speech may not form the basis of a prosecution for misbranding." The court further held that "the combination of statements and disclosures that Amarin proposes to make to doctors relating to the use of Vascepa to treat persons with persistently high triglycerides,as such communications have been modified herein, is truthful and non-misleading."

The decision opens more direct paths to communicate truthful and non-misleading information about Vascepa clinical trial results and the state of science relevant to the potential of Vascepa to reduce the risk of cardiovascular disease. With such information readily available, healthcare professionals will be better able to assess for themselves how best to choose among available treatment options for their patients.

Times Reporter Will Not Be Called to Testify in Leak Case
— The New York Times

After a nearly eight-year legal battle to keep New York Times reporter and Pulitzer Prize-winning author James Risen from having to testify about the identity of his confidential sources, the U.S. Department of Justice withdrew its effort to have him do so. Mr. Risen’s 2006 book, State of War, used confidential sources to describe a failed CIA operation. Cahill has represented Mr. Risen in connection with this case since 2007, when he was first contacted by the Justice Department in an effort to compel him to identify those sources as part of the Government’s efforts to prosecute a former CIA officer for allegedly leaking the information to Mr. Risen.

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Mr. Risen moved to quash the subpoena on the grounds that the information sought was protected by the reporter’s privilege under the First Amendment and/or federal common law. The district court granted Mr. Risen's motion and limited his testimony to authenticating his prior reporting as accurate without disclosing his source(s). On July 19, 2013, in a split decision, the Fourth Circuit reversed, finding no reporter’s privilege under the First Amendment or federal common law. Mr. Risen filed a petition for certiorari with the United States Supreme Court, which was denied on June 2, 2014. Following these unsuccessful attempts to quash the subpoena, Mr. Risen testified in the district court on January 5, 2015 that, under no circumstances would he reveal the identity of his confidential sources. On January 12, both the Justice Department and the defendant announced that they would not call Mr. Risen as a witness in the case.

1-800-Flowers to Acquire Harry & David for $143 Million
— The Wall Street Journal

Cahill represented 1-800-Flowers.com, Inc. in its acquisition of Harry & David Holdings, Inc., a leading specialty retailer and producer of branded premium gift-quality fruit, gourmet food products and other gifts marketed under the Harry & David, Wolferman’s and Cushman’s brands.

Valeant Wins Battle for Salix Pharmaceuticals
— The Wall Street Journal

Cahill advised the financing sources in their various capacities as initial purchasers, underwriters, agents and lead arrangers in debt, equity and bank financing transactions that backed the $15.8 billion acquisition of Salix Pharmaceuticals by Valeant Pharmaceuticals. The deal was consummated in a relatively compressed time frame and Cahill represented Deutsche Bank Securities, HSBC, MUFG, DNB Markets, SunTrust Robinson Humphrey, Barclays, Morgan Stanley, RBC Capital Markets and Citigroup in providing committed financing for the acquisition as well as each of the three distinct bank, bond and equity transactions that collectively generated proceeds of over $16.5 billion to fund the acquisition.

Burger King to Buy Tim Hortons for about $11 Billion
— Bloomberg Business

Cahill represented the financing sources in bank loan and bond issuance transactions with an aggregate value of $9 billion, to fund the acquisition of Canadian coffee giant Tim Hortons by Burger King. On the bank side, Cahill represented JPMorgan Chase Bank and the group of lead arranging banks in a $6.75 billion bank financing, to fund the acquisition. In connection with the bond deal, Cahill represented Wells Fargo Securities and the other initial purchasers in offering $2.25 billion in second lien senior secured notes due 2022, to also fund the acquisition.

Cahill Gordon’s Kelley Is Toyota Monitor: Business of Law — Bloomberg

The U.S. Department of Justice appointed Cahill partner David Kelley as the independent monitor responsible for overseeing Toyota Motor Corp.’s compliance with safety efforts as part of the deferred prosecution agreement Toyota entered into with the DOJ that was announced in March 2014, following an investigation finding the company had issued misleading statements over safety recalls on certain of its vehicles. As the independent monitor, Kelley leads the Cahill team that reviews, assesses and reports on the policies, practices and procedures for Toyota’s safety compliance and communications in the United States.

S&P Near $1.37 Billion Settlement of Crisis-Era Suits — The Wall Street Journal

Cahill represented McGraw-Hill Financial, Inc. and Standard & Poor’s Financial Services LLP (S&P) in connection with law suits commenced by the United States, 19 states, the District of Columbia and numerous private litigants. The governmental litigations and many of the private actions have recently been settled, as have certain claims by the Securities and Exchange Commission, New York and Massachusetts. Cahill has represented S&P in all litigations relating to S&P’s ratings of mortgage backed securities. Since 2009, Cahill has obtained dismissals in 29 such cases and has won numerous appeals in the cases. 

BofA, Citigroup, Credit Suisse Sued by FDIC over LIBOR — Bloomberg

Cahill is representing Credit Suisse Group and its subsidiaries in civil litigations and investigations with respect to alleged manipulation of the London Interbank Offered Rate (LIBOR) and other reference rates during the financial crisis. More than a dozen major global financial institutions have also been named in these litigations and investigations. LIBOR supports an estimated $800 trillion in loans and securities each year, and is one of the best known and most important interest rates in the world.

Spotlight on Pro Bono: Flying Giant Productions Takes Flight

Through Cahill’s partnership with the Veterans Program at the New York State Small Business Development Center, teams of Cahill litigators and transactional attorneys have helped several veterans make the transition from the military to the private sector by providing pro bono assistance as they launch their small businesses.More

Cahill associates have advised service members-turned-entrepreneurs on issues such as corporate entity formation, intellectual property, contract matters and hiring employees. Among our clients in this initiative are Melanie McLean, an Air Force veteran whose videography and photography company, Flying Giant Productions, is open for business and growing serving clients such as Esquire magazine, and Raymond Collazo, a former U.S. Army paratrooper whose social networking site for fans of independent film, FilmLinkUp, will soon debut.

Carlyle Buys Johnson & Johnson Testing Division for $4.15 Billion — The New York Times

Blackstone Agrees to Buy Gates Global in $5.4 billion LBO — Bloomberg

Vista Equity to buy Tibco Software for $4.3 billion — Reuters

Caryle to Buy Illinois Tool Unit for $3.2 billion — The Wall Street Journal

KKR to take Control of Sedgwick Claims Management in $2.4 Billion Deal — Reuters

Reflecting its prominence in the U.S. leveraged finance markets, Cahill advised the financing sources in the five largest leveraged buyouts completed in 2014, according to data compiled by Thomson Reuters of completed U.S. buyouts with disclosed transaction values.

Cahill represented the financing sources in the debt financings for the buyouts of: Gates Global by Blackstone Group, Tibco Software by Vista Equity Partners, Ortho-Clinical Diagnostics and Illinois Tool Works by The Carlyle Group and Sedgwick Claims by an investor group. These transactions generated aggregate gross proceeds of approximately $14.3 billion. Cahill also represented the debt financing sources in many other leveraged buyouts and M&A financing transactions completed in 2014, including the acquisition of Tim Hortons by Burger King, Bally Technologies by Scientific Games, URS Corp by Aecom Technology Corp. and buyouts of Advantage Sales & Marketing, The Hillman Companies and DTZ.

Since representing the financiers in KKR's historic $24.6 billion takeover of RJR Nabisco in 1988, Cahill has advised the financing sources in 8 of the 10 biggest buyouts completed to date (TXU, HCA, RJR Nabisco, Harrah's Entertainment, Kinder Morgan, H.J. Heinz, Alltel and First Data).

Major Media and scholars side with Taya Kyle against Jesse Ventura — Minnesota Star Tribune

On behalf of 33 media entities and organizations, Cahill submitted a brief, amici curiae, to the Eighth Circuit in the appeal of an unprecedented award in a defamation suit brought by former Governor of Minnesota Jesse Ventura against Chris Kyle, a former U.S. Navy SEAL and author of the 2012 best selling American Sniper autobiography. The suit arose out of a one-and-a-half page passage of Kyle’s book in which he described a bar fight with an individual he identified only as “Scruff Face,” and whom he later publicly confirmed to be Ventura. On August 7, 2014, the District Court for the District of Minnesota awarded former Governor Ventura $1.8 million based not only on supposed damages sustained by Ventura but also on profits purportedly received by Kyle from the sale of his book. Amici argued that the ruling awarding a libel plaintiff profits received from the sale of a book is unprecedented in American history and cannot be reconciled with the common law or the First Amendment. Companies signing on to the brief included A&E Television Networks, Buzzfeed, Gannett Co., Hearst Corp., the Motion Picture Association of America, the New York Times Co., Penguin Random House, Time Inc., and the Washington Post.