(Illustration by Suat Gursozlu)
Three Am Law 100 firms are helping two longtime book industry stalwarts seeking to turn the page on their future, as publishing grapples with the challenges posed by Amazon.com and other changes that have disrupted its traditional business model.
On Wednesday, Barnes & Noble announced the long-awaited spinoff of its struggling e-book unit Nook Media. The nation’s largest bookstore chain hopes the move to separate Nook from its more profitable brick-and-mortar retail business will increase shareholder value.
Cravath, Swaine & Moore, a longtime legal adviser to New York-based Barnes & Noble, has taken the lead advising the company on the split. Scott Barshay, the head of Cravath’s corporate department, and M&A partner Andrew Thompson are leading a team from the firm working on the matter for Barnes & Noble, which hopes to complete the spinoff by the first quarter of next year.
Barnes & Noble tapped Cravath for counsel last year as it sought to shore up its faltering Nook unit—one that has lost ground to Amazon’s Kindle device and Apple’s iPad—by selling a 5 percent stake to British publishing giant Pearson for $89.5 million. That deal came a little more than a year after Cravath advised Barnes & Noble on the $300 million sale of a 17.6 percent stake in Nook to Microsoft, which resulted in the settlement of IP litigation between both companies that kept busy Cravath and a half-dozen other large firms, according to our previous reports. (Microsoft reportedly discussed buying Nook’s e-books and device operations in a $1 billion deal last year that never materialized.)
Barnes & Noble’s desire to rid itself of Nook is nothing new. The Am Law Daily reported in early 2012 on Cravath’s role counseling the bookseller as it explored a spinoff of the e-reader, which came several months after cable magnate John Malone’s Liberty Media offered to buy Barnes & Noble for roughly $1 billion.
Liberty Media ultimately paid $204 million for a 17 percent stake in the company, which The Am Law Daily reported it reduced earlier this year as Barnes & Noble struggled with mounting losses stemming from Nook’s failure to catch on with customers. Barnes & Noble began curtailing its production of new Nook tablet devices last year, shortly before the company’s chairman Leonard Riggio—advised by O’Melveny & Myers—dropped a bid to take control of the company’s 675 bookstores. (Riggio never made a formal offer to the company, of which he owns a nearly 30 percent stake.)
Barnes & Noble, which installed Michael Huseby as its new CEO earlier this year, was once the subject of a takeover battle between Riggio and billionaire Ronald Burkle that was chronicled in New York magazine. Cravath helped Barnes & Noble win a key ruling from a Delaware court in 2010 that beat back Burkle, who sold his nearly 20 percent stake in the bookseller in 2012.
Bradley Feuer serves as general counsel for Barnes & Noble, having taken over from predecessor Eugene DeFelice last year. The two wrote a letter in February 2013 to the Internet Corporation for Assigned Names and Numbers urging the nonprofit to deny Amazon’s application for “top level” website domain names because of its status as a “dominant player in the book industry.” (Federal tax records show that ICANN paid $1.9 million to Jones Day for legal services during its 2012 fiscal year.)
Jones Day, which once handled restructuring-related legal issues for Barnes & Noble’s now-defunct bookselling rival Borders Group, and Amazon also factor into the other notable book industry deal announced this week.
Hachette Book Group continued the wave of consolidation roiling the publishing industry by acquiring New York-based Perseus Books Group this week for an undisclosed sum. Perseus, an independent publisher owned by Bethesda, Md.-based private equity firm Perseus LLC, will sell its client-service business to Ingram Content Group, a unit of Nashville-based book distributor Ingram Industries. (Ingram Content general counsel Linda Dickert did not respond to a request for comment about the company’s legal counsel, although a source says the deal was handled in-house.)
Jones Day corporate partners John Hyland and John Kane, tax partner Edward Kennedy and associates Ashley Gullett and Jerome O’Brien are advising Hachette on the transaction. Hachette has been a longtime client of the firm.
Carol Fein Ross, executive vice president of business affairs and general counsel for Hachette, is handling in-house matters on the deal, along with vice president of legal and business affairs Rekha Ramani. Hachette is a unit of Paris-based Hachette Livre, which is owned by French conglomerate Lagardere, whose general counsel is Norbert Glaoul.
Hachette’s ongoing battle with Amazon over e-book pricing has been well covered in recent weeks. The former’s purchase of Perseus will bolster its nonfiction portfolio, which could help Hachette increase its bargaining power with Amazon, whose tactics in the dispute have been criticized by authors and customers alike. (Hachette has claimed publicly that its purchase of Perseus has nothing to do with its dispute with Amazon.)
New York-based Hachette was the world’s sixth-largest book publisher in 2013, according to Publishers Weekly, which ranked Perseus at No. 42. A team of lawyers from Arnold & Porter led by corporate partners Robert Ott and David Berg, tax partner Carey Smith, employee benefits partner Edward Bintz, environmental partner Peggy Otum and associates Rebecca Crawford, Jason Ewart, Theresa Nguyen and Raquel Saavedra are advising Perseus and its owners—five Perseus LLC investment funds—on the sale to Hachette.
Arnold & Porter previously counseled Perseus on its acquisitions of Avalon Publishing Group and Publishers Group West out of bankruptcy in 2007. The firm also advised Perseus in Borders’ Chapter 11 case, and has been representing the widow of Perseus founder Frank Pearl in litigation involving his estate.
Pearl, a lawyer and financier who died at 68 in May 2012, founded Perseus Books in 1996 with the fortune he amassed after transitioning from law to finance at the start of the leveraged buyout boom of the early 1980s. While Pearl shunned the spotlight in life, after his passing the late lawyer’s finances have come under scrutiny in litigation filed by Perseus LLC and several lender banks seeking money from his estate, according to a story last year by The Washington Post. After Pearl’s death, Kenneth Socha, a former Dewey Ballantine partner, was appointed to lead Perseus LLC, whose in-house vice president of legal is Joanne Shea.
In 1998, New York magazine profiled the reclusive Pearl, wondering if he could be the man to save publishing, a frequent topic of discussion in literary circles. Now it could be Perseus Books, one of Pearl’s prized possessions, which could provide Hachette with the hatchet it needs to fully take on Amazon.