(by Steve Marcus/Newscom)
UPDATE: 5/8/14, 10:00 a.m. EDT. Sotheby’s has agreed to reimburse Loeb $10 million to cover his proxy battle expenses.
Roughly a half-dozen firms had key roles on an agreement announced Monday to end a nasty proxy fight between activist investor Daniel Loeb and Sotheby’s.
Loeb, the founder of New York–based hedge fund Third Point LLC, has been locked in a fierce battle with Sotheby’s management since he teamed up last year with Trian Partners and Marcato Capital to take a 5.7 percent stake in the venerable auction house. Third Point’s stake is now 9.6 percent, making it the largest shareholder in Sotheby’s.
New York–based Sotheby’s, whose increasingly bitter interactions with Loeb and ongoing competition with London-based archrival Christie’s International were recently profiled in New York magazine, has now agreed to name Loeb and two of his candidates to its board of directors.
Sotheby’s worldwide general counsel and former Chadbourne & Parke partner Gilbert Klemann II did not respond to a request for comment about the company’s outside legal advisers during its battle with Loeb—a dispute that The New York Times’ DealBook states cost the company more than $10 million—nor did the auction house’s associate general counsel and director of litigation, Jonathan Olsoff.
But securities filings and court records in Delaware—where the First State’s Court of Chancery upheld a poison pill by Sotheby’s last week—show that Wachtell, Lipton, Rosen & Katz and Delaware’s Potter Anderson & Corroon took the lead for the auction house in its fight with Loeb. Wachtell advised the family of noted real estate investor and philanthropist A. Alfred Taubman nearly a decade ago on the sale of its stake in Sotheby’s. (Taubman famously shook up the relatively staid art world—and incurred his own legal troubles—following his acquisition of Sotheby’s in 1983.)
Third Point, whose general counsel and chief operating officer Josh Targoff also did not respond to a request for comment, has turned to Willkie Farr & Gallagher; Gibson, Dunn & Crutcher; New York’s Dontzin Nagy & Fleisig; and Delaware’s Morris, Nichols, Arsht & Tunnell for outside counsel in its Sotheby’s campaign. Dennis Friedman, head of M&A at Gibson Dunn and a member of the firm’s executive committee, did not respond to a request for comment about his firm’s role in the matter.
Willkie is a longtime legal adviser to Loeb’s Third Point, having counseled the hedge fund on its purchase in late 2011 of a 5.2 percent stake in struggling Yahoo Inc., according to our previous reports. Loeb himself is the son of the late Ronald Loeb, a former senior partner at Irell & Manella and general counsel at Williams-Sonoma.
In a Delaware court hearing last week, Third Point’s lawyers read emails showing the concerns that that Sotheby’s own board had about the company’s corporate governance. Marsha Simms, a retired corporate partner at Weil, Gotshal & Manges, sits on Sotheby’s board along with Columbia Law School professor Michael Sovern, the latter of whom has not stood for reelection.
As part of the agreement announced Monday, Sotheby’s chairman and CEO William Ruprecht will remain on the board of the 270-year-old company, which Loeb likened in a letter to investors last fall to “an old master painting in desperate need of restoration.” Sotheby’s responded shortly thereafter by adopting a poison pill in an effort to fend off Loeb amid mounting investor pressure.
Joining Loeb on Sotheby’s board are allies Harry Wilson, a restructuring adviser, and Olivier Reza, the head of the House of Alexandre Reza, a Parisian luxury jeweler. Both recently received the approval of proxy advisory firm Institutional Shareholders Services following the filing of Loeb’s suit against Sotheby’s management in Delaware last month over the company’s poison pill.
The Deal reported in April that Delaware’s Proctor Heyman was advising Loeb’s Third Point in a subpoena of Goldman Sachs, a Sotheby’s financial adviser as part of the chancery court litigation. Cravath, Swaine & Moore and Delaware’s Abrams & Bayliss have been advising Goldman in the matter, according to The Deal. Sotheby’s, which has been working to revamp its finances, hired former Goldman investment banker Patrick McClymont last September to be its new chief financial officer.
Last month Sotheby’s set a record for the most expensive Chinese porcelain bowl ever sold with its $36.3 million sale of a Ming dynasty ” chicken cup” at an auction in Hong Kong. Kevin Ching, who presided over the sale and serves as CEO of Sotheby’s Asia, is a former partner at Mayer Brown predecessor firm Johnston Stokes & Master.
As part of the deal with Loeb announced Monday, Sotheby’s will terminate its poison pill and Third Point will withdraw its Delaware suit, allowing the hedge fund to raise its stake in the auction house to 15 percent.