Clifford Chance, Hogan Lovells, Proskauer Rose, and Skadden, Arps, Slate, Meagher & Flom are advising on an initial public offering for Empire State Realty Trust (ESRT), the owner and operator of the Empire State Building, which raised nearly $930 million this week, and according to an SEC filing generated some $33 million in legal fees and expenses—in part due to a nasty legal fight over whether the 102-story tower would go public.
The building’s largest shareholder, The Leona M. and Harry B. Helmsley Charitable Trust and the Estate of Leona M. Helmsley, was advised on the offering by a team of Skadden lawyers led by real estate partners Benjamin Needell and Vered Rabia, trusts and estates partner Jonathan Koslow, corporate finance partner David Goldschmidt, tax partner Dean Shulman, and associate Yasmeena Chaudry.
“This was an unbelievably complex transaction,” says Needell, a top Manhattan commercial real estate lawyer who notes that Skadden has been advising John Codey, one of the executors of Leona Helmsley’s $5 billion estate in the wake of her death in 2007. Leona Helmsley’s longtime lawyer Sandor Frankel is among the Helmsley Trust’s other trustees. ( The so-called Queen of Mean famously left $12 million to her dog, Trouble, who died in 2011.)
The Empire State Building’s backstory is complex as well.
Built at the beginning of the Great Depression in 1931, the Art Deco edifice narrowly escaped bankruptcy in its early days. Over the course of the next eight decades, it was the center of an array of legal disputes, while also making a memorable appearance in King Kong and being struck by a small plane in 1945.
In 1961, real estate magnate Harry Helmsley bought the property for $65 million in tandem with New York lawyer and real estate investor Lawrence Wien, a Columbia Law School graduate whose name adorns the school’s football stadium in Manhattan. Wien and his son-in-law Peter Malkin raised the $33 million for their stake by selling shares at $10,000 apiece to 3,300 individuals—some of them small-time investors and others lawyers affiliated with the Wien & Malkin law firm—who bought into Empire State Building Associates (ESBA), which sublet the skyscraper for the next 114 years to an entity jointly controlled by Wien and Helmsley.
Following Wien’s death in 1988 and Helmsely’s demise ten years later, Malkin and his son Anthony Malkin (Wien’s grandson) began battling Leona Helmsley and her late husband’s former business partners for ownership of what was the world’s tallest building from 1931 to 1972.
Though the Malkins managed to clinch a $57.5 million deal in 2002 that allowed them to take control of the parcel on which the tower sits from Donald Trump and a Japanese investor, legal wranglings continued. Indeed, the litigation between the Malkins and Leona Helmsley over who controlled the property, which had fallen into a state of disrepair, dragged on until the Malkins ultimately prevailed in 2006.
By that point, Wien & Malkin had long since ceased practicing law in favor of focusing on its real estate holdings. The firm specifically focused on real estate syndication, a practice it pioneered that essentially involves pooling investors’ assets to fund real estate transactions. In 2009, Wien & Malkin officially changed its name to Malkin Holdings as part of a rebranding effort that coincided with a $500 million plan to renovate the Empire State Building to restore its status as a prime New York tourist attraction.
Peter Malkin, a Harvard Law School graduate, became chairman of Malkin Holdings; Anthony Malkin serves as president and CEO of the New York–based firm and its various affiliates. Other Malkin-controlled Manhattan properties include One Grand Central Place, which sits across from Grand Central Terminal and was previously known as the Lincoln Building.
The Empire State Building, One Grand Central Place buildings, and more than a dozen other properties owned by the Malkins are now part of the ESRT, a real estate investment trust created two years ago to take public the family’s most famous assset—which the Malkins had appraised at $2.52 billion.
But not all of the building’s shareholders supported the plan to push forward with an IPO.
One group of dissidents—the original investor group has been whittled to 2,800 from the 3,300 individuals who initially bought into the property—created a website to catalogue their claims that the Malkins had been duplicitous in their dealings with them. Several subsequently sued the Malkins, alleging that they were poised to reap most of the benefits from an IPO while shortchanging others who owned more modest stakes in the building.
Late last year the Malkins reached a $55 million class action settlement with a large group of aggrieved ESBA shareholders. That deal prompted a second group of dissidents—including, among others, California-based online business consultant Richard Edelman, Grand Central Terminal owner Andrew Penson, and some of the original mom-and-pop investors and their heirs—to intervene in the case earlier this year by filing affidavits aimed at blocking the settlement.
But on May 1—the 82nd anniversary of the Empire State Building’s dedication—a Manhattan state court judge approved the $55 million class action settlement. Later that month, more than 80 percent of shareholders approved the Malkins’ plan to go public, clearing the way for this week’s IPO.
New York’s Dewey Pegno & Kramarsky advised the Malkins in the shareholder litigation, while Chimicles & Tikellis, Labaton Sucharow, Pomerantz Grossman Hufford Dahlstrom & Gross, and Wolf Haldenstein Adler Freeman & Herz represented the class action plaintiffs. An SEC filing states that 80 percent of the $55 million settlement will be cash with the remaining 20 percent shares in ESRT—a source says the deal will net plaintiffs’ lawyers about $25 million.
Stephen Meister, a name partner with New York’s Meister Seelig & Fein, took the lead for the intervenors, with Boston-based solo practitioner Alan Kovacs an objector. The same source tells The Am Law Daily that Meister took the case on contingency and that an appeal is most likely “dead.” (Meister did not return a request for comment.)
Net proceeds from the IPO are expected to be $754.4 million after deducting about $280 million in various expenses for underwriters, lawyers, and certain taxes.
Stuart Barr, a corporate partner with Hogan Lovells in Washington, D.C., is leading a team from the firm acting as counsel to underwriters led by Bank of America/Merrill Lynch and Goldman Sachs. Barr did not return a request for comment. Hogan Lovells co-CEO and corporate partner J. Warren Gorrell Jr., finance and securities partner Bruce Gilchrist, tax partner Prentiss Feagles, real estate finance partner Lee Berner, counsel Stephen Giordano and Matt Thomson Jr., and associates Ranee Adipat, Brandon Egren, Will Pridgen, Inga Rubin, and Sara von Althann are also working on the matter.
Though not a party to the shareholder litigation, the Helmsley estate—which, according to news reports and SEC filings, stands to reap roughly $660 million from the IPO—was represented in the matter by Cravath, Swaine & Moore retired partner Ronald Rolfe. Skadden’s Needell says he is still sorting through the offering documents to determine how much his client has monetized its investment in the Empire State Building.
A source in the Malkins’ camp tells The Am Law Daily that a relatively small portion of the legal fees associated with the IPO are related to the litigation, with the bulk going to lawyers handling corporate, securities, real estate, and tax work related to the offering.
Clifford Chance corporate partners Larry Medvinsky and Jason Myers in New York are leading a team from the Magic Circle firm advising Malkin Holdings on the IPO for the ESRT. Neither responded to requests for comment. (Myers made partner last year.) Malkin Holdings turned to Proskauer capital markets partner Arnold Jacobs for counsel on the consolidation of its predecessor entities that were folded into the ESRT as part of the IPO.
Lawyers-turned-private equity executives Steven Gilbert and Lawrence Golub, both of whom graduated from Harvard Law School, serve as independent directors for the ESRT. Thomas Keltner Jr. is the REIT’s general counsel and corporate secretary. He declined to comment.
Shares in the ESRT began trading at $13—about half the cost of buying a ticket to the Empire State Building’s observation deck—although legacy ESBA certificates are valued at roughly $323,000.
The IPO leaves the Malkins as the largest shareholders in the ESRT with a stake valued at $460 million, according to The New York Times’s DealBook. Forbes, meanwhile, notes that Anthony Malkin has a long way to go before he can run with the billionaire crowd—a fact that the disaffected investors who sought to block the landmark IPO are unlikely to take much comfort in.