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One way to end a protracted and bitter battle between two cross-country rivals — marry them. Fenwick & West’s Robert Dellenbach represented Santa Clara-based Speedera Networks in its acquisition by Akamai Technologies Inc. of Cambridge, Mass. The two companies, which compete in the market for an Internet technology that speeds the delivery of Web-based content and applications, struck a $130 million stock deal earlier this month. Under the terms, Akamai received stock for Speedera and its India-based subsidiary in exchange for 12 million shares in common stock. The deal follows a legal battle over IP that lasted three years and was fought in state and federal court in California and Boston. “It has been complicated and it has been expensive,” says Dellenbach. Fenwick & West and O’Melveny & Myers handled different aspects of the court disputes for Speedera. Latham & Watkins and Bingham McCutchen represented Akamai. Akamai sued Speedera first, claiming patent infringement and then trade secret theft. (Previously, Akamai had sued another company in the industry, San Francisco-based Digital Island Inc.) “It is like a kid in the sandbox who has a crush on someone and goes to hit them,” says Dellenbach. Then he adds, “Akamai is a serious company and they have invested in a lot of IP and they believed there was some infringement. And for some reason, their strategy was to use their IP aggressively.” Speedera retaliated with its own action — a cross-complaint claiming Akamai was engaging in anti-competitive conduct. Dellenbach says the merger with a larger company is a testament to the strength of his client’s IP. “The stronger your own patent position, the more likely it will be that you can raise claims against the other side,” said Dellenbach. “And if you can survive long enough to defend yourself, you can do a deal like this.” Working with Dellenbach and Speedera’s counsel, Elizabeth Dominik, Fenwick’s team included corporate partner Gail Suniga and associates Ryan Hayes, Garth Bossow, Steven Levine, Sylvia Barboza and Daniel Polsby; benefits partner Scott Spector, associate Bill Herochik and of counsel Mona Clee; tax partner Ron Schrotenboer and associate Adam Halpern; IP partners Rajiv Patel, Brian Hoffman and Laura Majerus; antitrust partner Mark Ostrau; trademark senior counsel Linda Henry; and employment and labor partner Ray Hixson. The Speedera stockholders were represented by Cooley Godward partners Eric Jensen and John Geschke and associate Kathryn Walker Hall. Jotham Stein and Cindy Smith of Stein Smith represented Speedera’s management. The Palo Alto office of the Indian law firm Nishith Desai Associates represented Speedera’s Indian subsidiary. Representing Akamai were corporate attorneys Aaron Ahola and Jim Hammons and lawyers from Wilmer Cutler Pickering Hale and Dorr and Paul, Hastings, Janofsky & Walker. — Marie-Anne Hogarth SUNGARD BOUGHT FOR BILLIONS Thanks to another firm’s conflict of interest 15 years ago, Morgan, Lewis & Bockius ended up at the center of a deal that’s being called a throwback to the massive buyouts of the 1980s. The $11 billion-plus acquisition of SunGard Data Systems Inc. by a group of investment firms — led by Silver Lake partners of Menlo Park — is believed to be the biggest leveraged buyout since RJR Nabisco was bought in 1989, said Howard Shecter, who led the Morgan, Lewis team that represented SunGard’s management. “This is being described, and I suspect accurately, as a landmark transaction,” he said. While Shecter is based in New York — and the rest of the Morgan, Lewis team is from the New York and Philadelphia offices — it was San Francisco partner Jami McKeon who made it possible. “She was instrumental in getting us in there to make a presentation,” Shecter said. That presentation, he added, convinced the financial software maker’s management team that it should go with Morgan, Lewis. McKeon said she began representing SunGard about 15 years ago. At the time, the firm was interviewing firms because its then-outside counsel couldn’t handle certain matters due to a conflict. So McKeon came in and made a presentation similar to Shecter’s. And with similar results. In both cases, she said, “the expertise of our team that we put in front of them was such that they selected us.” Since 1990, Morgan, Lewis has represented SunGard in a range of litigation, business and employment matters, with McKeon as the relationship partner. Shecter said most of Morgan, Lewis’ work on the deal involved compensation and equity issues for managers. The other terms of the deal were negotiated by SHEARMAN & STERLING, which represented SunGard, and ROPES & GRAY and SIMPSON THACHER & BARTLETT, which represented the investment funds. “It got a little more complicated when six firms joined the buyer’s side,” said Shecter, adding that despite the large number of players, the deal went smoothly and amicably. “There was no hanging up the phone or other actions that sometimes characterize negotiations,” he said. — Justin Scheck

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