2016 year in review

O’Melveny represented Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc., BMO Capital Markets Corp., Citigroup Global Markets Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, MUFG Securities Americas Inc., RBC Capital Markets, LLC, and Wells Fargo Securities, LLC, as agents, and their respective affiliate forward purchasers in connection with the establishment and commencement of Affiliated Managers Group Inc.’s Equity Distribution Program to offer, issue, and sell up to an aggregate of US$500 million of shares of its common stock.

O’Melveny represented Ever Billion and its controlling shareholder Sunbase International (Holdings) Limited in its US$98 million acquisition of a minority stake in CASH Financial Services Group Limited from Celestial Asia Securities Holdings Limited.  To complete the acquisition, Ever Billion will be required under the Hong Kong Takeovers Code to make a conditional mandatory cash offer to acquire the remaining shares of CASH Financial Services for up to US$155 million.

O’Melveny defeated a putative class action brought against an H&R Block subsidiary by successfully moving to compel arbitration.  The class action alleged that the tax services provider failed to timely pay wages and failed to provide accurate itemized wage statements to seasonal employees.  H&R Block moved to compel arbitration of the labor claims on the ground that the plaintiff entered into an enforceable arbitration agreement.  The court agreed, finding the arbitration provision “clear, unmistakable and non-unconscionable.”

O’Melveny handled various billion-dollar-plus offerings in 2016, including representing J.P. Morgan Securities LLC, Wells Fargo Securities LLC, and Mizuho Securities USA Inc. in Cox Communications’ US$1 billion Rule 144A/Regulation S notes offering; the joint book-running managers in the US$1.2 billion senior notes offering of Perrigo Company; BB&T Corporation in note offerings totaling US$3.6 billion; and U.S. Bancorp Investments, Inc., as lead arranger, in the establishment of U.S. Bank National Association’s US$50 billion Global Bank Note Program.  On the litigation front, we achieved dismissal or favorable settlements of several securities class actions against underwriting syndicates, including in Stitt v. On Deck Capital, Inc., In Re FireEye, Inc. Securities Litigation, and In Re A10 Networks, Inc. Shareholder Litigation.

O’Melveny represented Ocwen, the largest mortgage servicer in the US, in a pair of whistleblower lawsuits seeking more than US$8 billion.  The cases alleged that Ocwen violated the False Claims Act by falsely certifying compliance with regulations under the Home Affordable Modification Program and Federal Housing Administration insurance program.  O’Melveny took over Ocwen’s defense six months before the first scheduled trial and negotiated a settlement on the eve of trial for an amount that opposing counsel publicly characterized as “miniscule.”

In a Title IX sexual assault case, O’Melveny secured the denial of petitioner John Doe’s (Doe) writ of administrative mandate through which he sought to compel a liberal arts college to set aside his suspension.  The college initiated an investigation and disciplinary proceedings in accordance with its sexual misconduct policy and concluded that Doe sexually assaulted the student in violation of the policy.  The college issued several sanctions against Doe, the most serious of which was a one-year suspension.  In his writ, Doe claims he was denied a fair hearing and that the college’s findings were not supported by substantial evidence.  In a November 2016 decision, Los Angeles Superior Court Judge Mary Strobel rejected those claims and adopted O’Melveny’s arguments that (1) the college’s policy and actions were fair because they provided Doe notice of the allegations and an opportunity to respond; and (2) the college’s findings were supported by substantial evidence.  The decision could have a significant impact on this type of litigation.  While students in previous cases have found some success in challenging universities’ policies and procedures through petitions for writ of mandate, this decision provides wide deference to our client, suggesting that future cases could face an uphill battle in court.

O’Melveny obtained dismissal of a high-profile class action brought against the NCAA by two former student-athletes at the University of North Carolina (UNC).  The plaintiffs alleged that they and a putative class of former UNC student-athletes were damaged when they were steered by tutors and athletic support staff into academically unsound classes in the school’s African-American Studies department.  The academic scandal surrounding the so-called “paper courses,” which plaintiffs alleged “calcified into a shadow curriculum in which no course attendance was required and no faculty were involved,” garnered national attention, as did the plaintiffs’ lawsuit against the NCAA.  The case, originally filed in North Carolina state court, was successfully removed to the Middle District of North Carolina under the Class Action Fairness Act.  O’Melveny then obtained dismissal, arguing that the NCAA owed no legal duty to protect the quality of courses offered at member institutions.  While O’Melveny’s client was dismissed, the plaintiffs’ claims against UNC remain pending.  The court’s decision received widespread media coverage from CBS Sports and ESPN to the Associated Press and CNN.

O’Melveny represented a private college in connection with the Department of Education’s Office of Civil Rights investigation into the college’s Title IX-related policies and processes, focusing in particular on how the college processes and reports students’ complaints of sexual misconduct.  The OCR investigated the university for three years after receiving a complaint of alleged failures to comply with Title IX.  The OCR recently closed its investigation, issued its findings, and concluded that the college, in the main, had complied with Title IX.  Indeed, rather than finding systemic failures, the OCR “found a campus actively engaged in important work to satisfy Title IX responsibilities for all students.”

O’Melveny represented, in total, 32 different underwriters in the offering of The Regents of the University of California General Revenue Bonds, 2016 Series AR/AS/AT/AU in the aggregate principal amount of US$813,085,000; The Regents of the University of California Limited Project Revenue Bonds, 2016 Series K/L in the aggregate principal amount of US$532,070,000; and The Regents of the University of California Medical Center Pooled Revenue Bonds, 2016 Series L/M in the aggregate principal amount of US$1,046,155,000.  The Regents will use the bond proceeds to finance or refinance the acquisition and construction of projects at the University’s campuses and also improvements at its medical centers.

O’Melveny represented Apollo and related funds in several matters in 2016, among them:

• Completing two acquisitions of sports apparel manufacturers, which will serve as the cornerstone of Apollo’s strategy of building a regional apparel manufacturing ecosystem in the Americas.  The transactions were structured as acquisitions of 100% of the equity interests of Pennsylvania-based apparel manufacturer New Holland Lingerie, LLC and its affiliated companies in Honduras and Nicaragua (New Holland), and Virginia-based textile screen printer ArtFX, LLC and its affiliated companies in El Salvador (ArtFX).  In connection with the acquisitions, O’Melveny also advised Apollo in the negotiation of and entry into a strategic supply agreement with Nike, Inc.  This innovative strategic partnership will increase regional manufacturing capabilities in the Americas, enable quicker delivery of more customized product to consumers, and drive investment in sustainability.
• Providing diligence and documentation services to Apollo in a US$6.9 billion deal to acquire ADT Corporation, a leading provider of home security alarm systems, in the largest leveraged buyout announced in 2016.  
• Obtaining Apollo’s dismissal from a suit alleging that an Apollo portfolio company violated federal and state labor laws by failing to pay overtime to allegedly joint employees.

O’Melveny serves as antitrust counsel to outdoor gear and apparel retailer Bass Pro Shops in its US$5.5 billion acquisition of camping and hunting retailer Cabela’s.  The private equity-backed deal will combine two of the largest sporting brands in the US.

O’Melveny secured victory in a long-running trademark dispute between Del Monte and its licensee Fresh Del Monte Produce Inc. (FDP).  In response to a cease-and-desist letter threatening arbitration, FDP asked for a declaration from the Southern District of New York that Del Monte had abandoned its trademark rights in Europe, Africa, and the Middle East so that it no longer needed to comply with the terms of its license.  The court agreed with Del Monte that FDP was not entitled to such relief in the US, leaving Del Monte free to pursue its arbitration.  The court held that “it would be grossly intrusive for a United States court to utilize the Lanham Act to declare trademarks registered by a foreign government under foreign law abandoned.”

O’Melveny is representing Hancock Fabrics, a specialty retailer of fabric and sewing accessories, in its ongoing chapter 11 case.  O’Melveny has had a multifaceted role as lead restructuring counsel.   Specifically, O’Melveny has assisted Hancock Fabrics in its preparation for the company’s chapter 11 filing; advised the company in its sale efforts, including with respect to bidding procedures; led the debtor-in-possession financing negotiation, which ultimately resulted in a US$100 million facility; and overseen the bankruptcy auction.

O’Melveny advised IVC in its acquisition of Perrigo Co.’s US vitamins, minerals, and supplements business.  The transaction makes IVC the largest provider of private-label supplements in the US in terms of dollar volume and units sold in the country.

O’Melveny represented Rajax on its Series F-1 financing from Alibaba.com.  Alibaba will invest, through two tranches, an aggregate amount of US$1.25 billion in Rajax for Series F-1 preferred shares, representing 27.9% of the share capital of Rajax (post-money, on a fully diluted basis).  Rajax is a Cayman company operating China’s largest online food ordering and delivery platform under the business name of Ele.me.

O’Melveny advised California-based Analogix in its US$500-plus million sale to a consortium led by Chinese investment fund Beijing Shanhai Capital Management Co. Ltd.  Analogix, a venture-backed client that O’Melveny has represented for more than a decade, makes high-speed, mixed-signal semiconductor integrated circuits for high-performance display applications.  They are used in mobile devices, virtual/augmented reality, and other high-performance electronic products made by, among other brands, Apple, Samsung, LG, Microsoft, Google, Lenovo, Dell, HP, Asus, and HTC.  This marks a significant shift in the market where Chinese companies have been stymied when attempting to buy US chipmakers.  Current investors include leading venture capital firms such as DCM Ventures, Globespan Capital Partners, Keytone Ventures, and the Woodside Fund.

O’Melveny represented cloud technology developer CliQr in its US$260 million sale to Cisco Systems, Inc.  CliQr, a venture-backed client that O’Melveny incorporated and represented for five years, makes cloud-based platforms meant to simplify customers’ online experiences.

O’Melveny represented satellite imagery provider DigitalGlobe in its US$140 million acquisition of The Radiant Group, a national security technical and analytical services provider, from its private equity owners Aston Capital.  The deal broadens DigitalGlobe’s presence in the business of providing analytics for the defense and intelligence community.

O’Melveny advised on the launch and initial financing of Habit, a startup utilizing technology to provide personalized nutrition suggestions.  The company sends customers home kits that allow for DNA sequencing to create a dietary plan that is completely individualized to what works best for each participant’s body.  Campbell Soup Co. is an investor.

O’Melveny has advised San Francisco-based Kabam, the leader in free-to-play multiplayer games for mobile devices, in dozens of transactions over the past decade, culminating in 2016 with the sale of its Vancouver business studio to Netmarble Games, one of South Korea’s top mobile game developers.

O’Melveny regularly advises NextVR, which broadcasts events live in virtual reality, on commercial agreements, including development and distribution agreements, and on terms of use, terms of service, privacy policies and related matters, and fundraising, including a US$80 million Series B funding round in 2016.

O’Melveny advised Otto, a developer of self-driving technology, in its sale to Uber Technologies Inc.  Otto is developing self-driving commercial trucks and other autonomous vehicle technologies.  The company said its self-driving trucks will allow drivers to rest while their truck is moving, which can help drivers deliver loads more easily.  Together, Otto and Uber can help build a self-driving freight system.

O’Melveny advised Rocketick, an Israeli microchip designer, in its sale to Cadence Design Systems, Inc., an electronic design automation software and engineering services company headquartered in San Jose.  Both marquee systems and semiconductor companies in the mobile, server, and graphics domains use Rocketick’s technology.  The integration of Rocketick’s technology will strengthen Cadence’s system design strategy by delivering simulation to accelerate development with the consumer products in mind, according to a news release.

An O’Melveny team obtained dismissal with prejudice of a complaint filed in a closely watched intercreditor litigation proceeding in the Texas Competitive Electric Holdings Company (TCEH) bankruptcy.  A group of TCEH lenders filed the complaint seeking a declaration that they had “priority rights” to as much as approximately US$600 million in cash collateral over the rights of other TCEH first lien lenders, including O’Melveny clients Apollo Management, Brookfield, and Angelo Gordon.  The dispute raised complex issues of contractual interpretation arising under several interrelated credit and security agreements.

O’Melveny advised AutoGrid in its US$20 million Series C-2 funding round.  Energy Impact Partners, an investment firm that represents four of the largest utilities in the US and in the United Kingdom, led a consortium of strategic investors along with Envision Ventures, a Menlo Park-based fund that focuses on software, Internet of Things, and security investments.  Envision Energy, a renewable energy developer and technology provider with more than 50 gigawatts of assets under management, also participated in the consortium.  The oversubscribed round included participation from existing investors like E.ON SE, a German utility and renewable energy developer.  AutoGrid, based in Redwood Shores, California, builds software for the energy industry.  The company plans to use the funds to further develop its Energy Internet suite of applications and to extend marketing and sales efforts in North America, Asia, and Europe.

O’Melveny represented a Clarity Partners affiliated entity in the sale of a portion of its oil and gas exploration and production assets in California to Peak Oil Holdings, LLC (Peak Oil) in exchange for an equity interest in Peak Oil and other considerations.  Clarity Partners is a private equity firm headquartered in Los Angeles, California.

O’Melveny advised the ad hoc group of LINN Energy second lien noteholders (the Ad Hoc Group) with respect to LINN’s chapter 11 cases.  O’Melveny was instrumental in crafting both the settlement agreement and the restructuring support agreement.  These agreements resolved all potential litigation related to the second lien notes, guaranteed second lien noteholders US$1 billion in additional claims they may have not otherwise received absent the settlement, and provided for a US$530 million investment by members of the Ad Hoc Group and other creditors in reorganized LINN.  As a result of these agreements, members of the Ad Hoc Group will own a substantial portion of the equity in reorganized LINN upon its emergence from chapter 11 in February 2017.

O’Melveny advised the administrative agent under a distressed Exploration & Production company’s reserve-based loan facility and, following a revolver drawdown, negotiated a restructuring support agreement restructuring more than US$1.5 billion in indebtedness through a prepackaged consensual chapter 11 plan of reorganization.

O’Melveny represented syndicates consisting of some of the world’s leading financial institutions and others in several renewable energy deals in 2016, including the acquisition of preferred equity interests in the Live Oak, River Bend, and Chaves solar power projects being developed by NextEra Energy, Inc. in Georgia, Alabama, and New Mexico as well as the acquisition of preferred equity interests in the Cotton Plains, Old Settler, and Phantom Solar power projects being developed by Apex Clean Energy Holdings, LLC in Texas.

O’Melveny represented Alibaba in its purchase of a minority stake in Steven Spielberg’s Amblin Pictures production company.  The transaction will partner Alibaba and Amblin to co-produce and finance films for global and Chinese audiences.  Alibaba Pictures will also collaborate on the marketing, distribution, and merchandising of Amblin’s films in China.

O’Melveny represented Goldstone Investment, CITIC’s private equity business arm, as part of a consortium to acquire Bona Film for approximately US$944 million.  Other consortium members include Mr. Dong Yu, founder, chief executive officer, and chairman of Bona Film, and investment subsidiaries of Alibaba Pictures, Tencent, All Gain Ventures, Fosun, Sequoia, and SAIF Partners.  Bona Film is one of China’s largest privately owned film distributors.

O’Melveny prevailed on behalf of Fox in a dispute with record label Empire Distribution Inc. over rights to the use of “Empire” in the hit television series of the same name.  The Central District of California granted summary judgment to Fox on all claims, including Fox’s claims for declaratory relief and defendant Empire Distribution’s counterclaims for trademark infringement, trademark dilution, and unfair business practices.  The court held that Fox’s use of the word “Empire” in connection with its show Empire and the show’s soundtrack music was fully protected by the First Amendment and fell outside the proscriptions of the Lanham Act.

O’Melveny represented IMAX® in the creation of the IMAX China Film Fund with its subsidiary IMAX China and partner China Media Capital to help fund a minimum of 10 tentpole films in Mandarin.  The China Film Fund, which will be capitalized at up to US$50 million initially, will target productions that can leverage the IMAX brand, relationships, technology, and release windows with the flexibility to produce IMAX and non-IMAX content and develop original films or co-finance studio productions.

O’Melveny advised on the formation of the Professional eSports Association (PEA), which is comprised of seven of the premier North American eSports teams, including Team Solomid (TSM), Cloud9, Team Liquid, Counter Logic Gaming (CLG), Immortals, NRG eSports, and compLexity Gaming.  The PEA will govern distribution of profits to owners, players, and member teams as well as other player financial benefits and services, including retirement and investment planning, health insurance, and more.  The PEA also includes a Rules Committee and Grievances Committee, with player-representatives sitting on both.

O’Melveny represents Sirius XM in litigation involving one of the most important issues affecting the radio and music industries—whether broadcasters like Sirius XM are required to contract with and pay record companies in order to play records created before 1972.  O’Melveny took over the cases from another well-known law firm after courts in New York and California concluded, for the very first time, that state law provides pre-1972 recording owners such a “performance right” and that Sirius XM and other broadcasters could no longer play pre-1972 records without first obtaining permission and paying whatever the recording owners demanded.  These rulings threatened to upend decades of practice and consensus.  O’Melveny achieved immediate success when a Florida district court declined to follow the New York and California decisions and ruled in favor of Sirius XM.  O’Melveny then convinced the New York district court to allow interlocutory review of its adverse decision, and the Second Circuit certified the lynchpin performance-right issue to the New York Court of Appeals, the state’s highest appeals court.  In December, that court ruled decisively in favor of Sirius XM, holding that New York law does not grant pre-1972 recording owners any right to demand permission or compensation for performances of their recordings.  See the Appellate section for more details about this historic victory.

O’Melveny represented world-famous boxing promoter Top Rank in a high-profile dispute with Al Haymon—an entrepreneur called “the most powerful man in boxing.”  Our client filed a federal antitrust lawsuit against Haymon, who had raised as much as US$500 million in a scheme to force boxers and broadcasters into “exclusive” agreements prohibiting them from doing business with Top Rank and other promoters with an aim to drive competition out of business.  The O’Melveny team worked with Top Rank to draft a widely read complaint that coincided with an aggressive discovery strategy which forced Haymon to the table.  The result was a significant monetary settlement for Top Rank and structural relief that ensured full and fair competition.

O’Melveny represented UCI in corporate and M&A matters related to its US$135 million purchase of digital media assets from Gawker Media Group Inc. as part of Gawker’s bankruptcy proceedings. O’Melveny also represented UCI in its agreement with ABC to end their joint ownership of FUSION, the network launched by the two companies in October 2013.  UCI became the sole owner of FUSION, which is now part of UCI’s Fusion Media Group, a multi-platform destination that also includes El Rey Network, The Onion, A.V. Club, Clickhole, Univision Digital, Univision Music, and the Gizmodo Media Group, which includes the assets acquired from Gawker, the Fusion digital business, and The Root.

O’Melveny advised the studio on various deals and disputes in 2016, including defeating copyright and story-theft claims against the movies Trouble with the Curve and War Dogs, resolving an accounting dispute surrounding Goodfellas, finally ending the decades-long battle over the iconic Superman character (after numerous wins in the Court of Appeals), defending the Lord of the Rings and Hobbit franchises from a variety of claims, and successfully moving to strike and recovering legal fees under California’s anti-SLAPP statute from former Clippers owner Donald Sterling, who sued Warner Bros.’ affiliate TMZ.

We defended Humana in connection with a whistleblower complaint alleging that certain in-home patient assessments conducted by contractors of various health plans resulted in false claim submissions to the Medicare program.  In September 2016, a Texas federal judge granted our motion to dismiss Humana from the case.  The judge wrote that the whistleblower would have the opportunity to replead her claims against Humana, but she declined to do so.

We are defending a leading managed care company in a DOJ and HHS-OIG investigation into whether the managed care plan received inflated premiums from the Medicare program and maintained inappropriate financial relationships with its contracted providers.

O’Melveny achieved a major victory for clients UnitedHealth Group and UnitedHealthcare Insurance Company, persuading a federal district court to dismiss with prejudice a class complaint that alleged hundreds of millions of dollars in damages arising out of the Medicare Supplement insurance program UnitedHealth offers to members of AARP.  The action, Peacock et al. v. AARP, Inc. et al., was filed in the Southern District of Texas and was one of two coordinated putative class actions brought by a single plaintiffs’ firm testing a novel theory of liability: that UnitedHealth, in compensating AARP for the use of its marks in order to market the insurance program, is really paying commissions to an unlicensed insurance agent.  The court rejected the argument.

O’Melveny represented Zhongmei in its US$63.8 million pre-IPO investment by the Carlyle Group.  The O’Melveny team helped the client navigate and comply with various stringent Hong Kong listing rule restrictions for pre-IPO investments. Zhongmei is contemplating a Hong Kong IPO in the near future.  Zhongmei is a leading private specialty hospital management company in China, and its hospital network consists of four specialty hospitals and two general hospitals. Its renal disease specialty practice ranks No. 1 in China as measured by number of beds in operation.

O’Melveny provided environmental and litigation due diligence and documentation in connection with Apollo’s US$2.2 billion acquisition of Diamond Resorts International Inc., a Las Vegas-based timeshare resort company.

O’Melveny represented NCL Corporation, a subsidiary of Norwegian, in a series of transactions, including the offering of US$700 million of high-yield senior notes and the application of the proceeds to purchase certain outstanding senior notes through an accelerated tender offer and subsequent redemption.

O’Melveny represented Shanghai-based Oasis Investment Group in the sale of 100% of its shares in Morning Star Travel—one of Hong Kong’s leading travel agencies—to Fantasia Holdings Group.  Morning Star is expected to develop the China outbound travel business aggressively in strategic business alliance with Colour Life Services Group Co., Ltd., another Fantasia group company.

O’Melveny represented SBE in its US$805 million acquisition of Morgans Hotel Group.  The combined company will own or operate 20 boutique and upscale hotels in cities such as Miami Beach, London, and New York and will include hotel brands like SLS, Delano, and Mondrian.

O’Melveny advised a major European chemical company on a worldwide risk assessment involving a report to the audit committee of the board of directors in the areas of export controls, anti-boycott, economic sanctions, anti-corruption, and antitrust.

O’Melveny secured a victory in the Central District of California for ESSA, a subsidiary of the Mexican government and one of the world’s largest salt mining companies.  The plaintiff, Packsys, S.A. de C.V. (Packsys), a Mexican manufacturing corporation, alleged that ESSA breached a multi-billion dollar contract to sell residual brine, a byproduct of ESSA’s salt production.  ESSA’s former General Director executed this contract. Packsys’ core argument was that ESSA was bound to the contract because its General Director had the authority to enter into the contract on its behalf.  But a Los Angeles federal court dismissed the suit, concluding that ESSA was immune from jurisdiction as a “foreign state” under the Foreign Sovereign Immunities Act.

O’Melveny represented Santasalo in its merger with David Brown.  Santasalo and David Brown, each of which are portfolio companies of Scottish private equity firm Clyde Blowers Capital, are two of the world’s leading mechanical power transmission companies.  With more than 1,000 employees, 7 major manufacturing plants, and 23 service centers across 6 continents, the combined business will serve over 5,000 customers worldwide in the commodities, marine, defense, power, industrial, and consumer-end sectors.

Facing industrial, financial, and operational challenges, Verso, North America’s leading producer of coated paper, sought O’Melveny’s help in restructuring its balance sheet.  Verso filed for chapter 11 with a multi-party restructuring support agreement in place and with a US$775 million debtor-in-possession financing package, which was one of the largest DIP financings in 2016 and involved three lender groups.  O’Melveny developed a restructuring plan for Verso’s US$2.8 billion of debt that preserved its fundamental operating strategy and inspired the bankruptcy judge to praise the agreement as a “remarkable result.”  Financial Times’ “commended” our ability to manage the restructuring’s “complexity and scale.”

In 2016, O’Melveny counseled on various Asia-focused funds, including representing IFM Investors in a master-feeder hedge fund investing in Asia-Pacific equity markets; Gaja Capital in the close of its third India-focused equity fund; and advising on a pan-Asian, SME credit fund.  Our team also advised on US$500 million in secondary transactions; assisted institutional investors fund commitments and co-investments worth, in aggregate, over US$2.5 billion; and counseled major sovereign wealth funds on the structuring of innovative investment platforms.

O’Melveny represented AustralianSuper in simultaneously negotiating two separate fund investments.  O’Melveny provided an in-depth analysis of the investment terms and counseled AustralianSuper during side-letter negotiations that allowed AustralianSuper to participate in the initial closing of each fund.  AustralianSuper is one of Australia’s largest industry funds with more than US$95 billion in member assets.  

O’Melveny represented Innovation Network Corporation, a US$20 billion Japanese government-backed investment fund, in its investment in Atonarp, Inc., a scientific instrumentation company that designs and manufactures Smart Spectrometers.

O’Melveny advised long-standing client Livingbridge in their sixth and largest private equity fund, successfully raising £660 million for investing in small- and medium-sized enterprises across the UK.  There was strong demand and many investors had their commitments scaled back considerably.  The fundraising process for Livingbridge 6 was incredibly fast, with negotiations with investors lasting just over a month.  We also advised on Livingbridge’s successful fundraise in 2015 with respect to a smaller buyout and growth fund.  

O’Melveny represented Shamrock in raising Shamrock Capital Growth Fund IV, a US$700 million fund focused on providing buyout and growth capital investments in companies within the media, entertainment, and communications industries.  Shamrock has closed four growth funds focused on media, entertainment, and communications investing with O’Melveny acting as fund counsel on the three most recent funds.  

O’Melveny advised California-based Edwards Lifesciences on its acquisition of Valtech Cardio, an Israeli heart valve company.  The deal involves US$340 million in stock and cash at the closing and the potential of up to US$350 million in milestone-driven payments.  The acquisition strengthens Edwards’ position as the dominant player in the transcatheter heart valve replacement market.  

O’Melveny is representing Endo in a sprawling pelvic mesh product liability litigation brought against Endo’s subsidiary AMS (now known as Astora Women’s Health), providing overall strategic advice for the company in what some commentators have called the largest mass tort in US history.  

O’Melveny represented New Horizon Capital, a China-focused private equity fund, in its investment in Zai Lab Limited.  The US$100 million investment, staged in two tranches, was led by New Horizon Capital, which has committed an aggregate amount of US$75 million, with the remaining US$25 million by existing investors of Zai Lab.  O’Melveny also advised New Horizon Capital in forming a joint venture with its co-investors for the purposes of this investment.  Zai Lab is a biopharmaceutical company dedicated to discovering, developing, and commercializing innovative medicines in China.  

O’Melveny represented underwriters and lead managers in various registered public offerings of Thermo notes totaling €2.2 billion and US$2.2 billion.  

O’Melveny has played a critical role in Microsemi’s growth, having handled more than 15 deals for the chipmaker over the past eight years.  In 2016, the firm advised Microsemi on its successful US$2.5 billion “deal jump” to acquire PMC-Sierra, Inc., its US$300 million sale of its board-level systems and packaging business to Mercury Systems, and its US$21 million sale of its Broadband Wireless Division to MaxLinear.

O’Melveny represented QLogic in its US$1.36 billion sale to Cavium Inc.  Cavium provides semiconductor products while QLogic offers data center networking and storage networking infrastructure solutions.  The combination enables Cavium to offer a complete end-to-end offering to customers in enterprise, cloud, data center, storage, telco, and networking markets while diversifying its customer base.  The transaction moved quickly with less than a month transpiring between the initial indication of interest from Cavium and the signing of the merger agreement.  

The Korea Fair Trade Commission (KFTC) accused Qualcomm, a major supplier of chips for mobile phone manufacturers, of engaging in a patent licensing scheme that violated Korean competition laws.  Qualcomm responded by asking a California District Court to force key customers—including Samsung, Intel, and others—to turn over information that the customers had shared with the KFTC.  As Samsung’s longtime antitrust counsel, O’Melveny challenged the subpoena request, which would have forced respondents to search through enormous volumes of material going back more than a decade and produce a number of highly sensitive documents.  After briefing and oral argument led by O’Melveny, the court denied Qualcomm’s subpoena request.  In December 2016, the KFTC concluded its investigation by issuing a record US$865 million fine against Qualcomm after determining that the company had engaged in unfair business practices.

O’Melveny represented Tricentis, a Vienna, Austria-based software company that provides software testing and software quality assurance solutions, in a US$165 million Series B financing from Insight Venture Partners.  Tricentis, which serves customers in 48 countries from its operations in the United States, Europe, and Australia, will use the funds to continue accelerating its market penetration and scale its operations.  

O’Melveny defended Top Victory in a patent infringement case involving six patents related to digital television technology.  After the plaintiff dismissed its infringement claims as to two of the key patents in suit, our team filed a motion for partial summary judgment, Daubert motions, and were preparing for trial.  Our aggressive litigation strategy pressured the plaintiff to accept a very low cost settlement in April 2016.  

In 2016, O’Melveny represented client Air Lease, an aircraft leasing company, in a series of major financing transactions—three public offerings of debt, raising aggregate gross proceeds of US$1.85 billion; a US$100 million private placement of notes; establishment of a private shelf facility; and an amendment and extension to Air Lease’s unsecured revolving credit facility.  Air Lease intends to use the net proceeds from each offering for general corporate purposes.  These transactions are critical not only to Air Lease’s continued operations but also to Air Lease’s ability to improve its investment grade rating, as rating agencies closely monitor issuers’ abilities to issue debt to a variety of investor bases.  

O’Melveny advised Alaska Airlines in its US$4 billion acquisition of Virgin America.  The acquisition expands the Alaska Airlines’ route network with nearly 1,200 daily flights to 118 destinations across the United States, Mexico, Canada, Costa Rica, and Cuba, making it the fifth largest US airline.  

O’Melveny represented Ford in an industry-wide consumer class action in the Central District of California in which plaintiffs have alleged their keyless cars have a dangerous defect because drivers can exit the car and remove their keyless fobs and still leave the engines running.  In September 2016, US District Judge Andre Birotte Jr. granted O’Melveny’s motion to dismiss the complaint with prejudice.  

O’Melveny advised Ireland-based Goshawk Aviation on its first issuance of unsecured notes to institutional investors in the US market.  The deal was launched as a US$200 million senior notes issuance.  Market demand was close to US$300 million, and the final issuance was US$231 million split between five-year and seven-year tenors.  Separately, O’Melveny advised Goshawk on a US$345 million revolving credit facility, with potential to upsize through a US$750 million accordion feature.  The proceeds from both transactions will be used for general corporate purposes and aircraft acquisitions. 

O’Melveny represented the airport authority in an historic transaction enabling the airport’s transfer from the City of Los Angeles to the authority.  O’Melveny helped create the authority pursuant to a joint powers agreement between the City of Ontario and the County of San Bernardino.  O’Melveny subsequently counseled on various transactional matters in connection with the transfer, including the authority’s inaugural issuance of its own revenue bonds, the proceeds of which were used to refund the City of Los Angeles’s Ontario airport bonds concurrently with the transfer of the airport in November 2016.  At a ceremony marking the transfer, Los Angeles Mayor Eric Garcetti, Senator Diane Feinstein, and Michael Huerta, the Administrator of the Federal Aviation Administration, among other dignitaries, lauded the completion of the transaction.  

O’Melveny represented the underwriters in a Diversity and Inclusion (D&I) registered global notes offering of US$900 million of TMCC’s 1.200% notes due 2018 and US$350 million of TMCC’s floating rate notes due 2018, setting a record for the largest corporate bond offering in which D&I firms played a lead role.  The lead bookrunners in this transaction were minority-owned or women-owned broker dealers accompanied by Citi as a joint lead bookrunner.  O’Melveny simultaneously represented the underwriters in connection with a second registered global notes offering of US$1.25 billion of TMCC’s 1.900% notes due 2021, which also included the D&I firms as co-managers in the transaction.  

In a victory that benefits the entire airline industry, O’Melveny won a major summary judgment motion for United Airlines confirming that state labor and employment law does not apply to individuals who work primarily outside the state’s borders.  The case involved a class of United pilots who alleged that United violated California Labor Code Section 226 by issuing wage statements to pilots that resided in California that arguably did not conform to the law’s requirements.  In its July 2016 order granting summary judgment for United, the court agreed with O’Melveny and held (1) that Section 226 did not apply to the plaintiff’s claims because he and the class members did not work principally in California; and (2) that applying Section 226 to United would unduly burden interstate commerce by requiring a national airline to comply with a patchwork of state regulations.  

O’Melveny serves as AstraZeneca’s lead counsel in Hatch-Waxman patent litigation involving AstraZeneca’s blockbuster breast cancer medicine FASLODEX®.  In 2016, after a successful first week of trial, two defendants (Sagent and Glenmark) settled on very favorable terms.  Another defendant, Mylan, recently also settled favorably in the second wave of litigations after we obtained a rare denial of a petition for inter-partes-review (IPR) before the US Patent and Trademark Office.  The second wave litigation continues against two remaining defendants (Teva and InnoPharma) with trial scheduled for summer 2017.  

O’Melveny was retained in late 2015 to represent now President Trump and Trump University in a pair of class actions in San Diego federal court brought by former students of Trump University seeking refunds of payments for real estate investing seminars.  Based on Trump’s candidacy for President of the United States, O’Melveny succeeded in securing a continuance of the first of the trials until after the Republican National Convention and, when Trump emerged as the Republican nominee, secured another continuance after the general election in November.  Prior to the election, O’Melveny also successfully defeated the efforts of national news organizations who intervened in the case to obtain and publicize the deposition video of Trump.  When Trump was elected President on November 8, O’Melveny filed a motion to continue the trial until after President-elect Trump concluded the Presidential transition process.  That motion, together with our pretrial successes, ignited settlement discussions that culminated in a resolution ending both class actions as well as civil suit filed by the New York Attorney General.  The federal judge who presided over the settlement discussions emphasized O’Melveny’s exceptional work and its impact on bringing the case to a final resolution just days before trial was set to begin.  

O’Melveny successfully defended Google in a patent trial in which German company Art+Com Innovationpool GmbH (ACI) accused Google Earth products of infringing its patent.  After a week-long trial, a Delaware jury determined that the technology used by Google Earth to display refined images of the planet did not infringe ACI’s patent and that, in any event, the patent was invalid.  

O’Melveny represented well-known philanthropist James F. Goldstein, the owner of the luxury 404-space Colony Cove Mobile Estates in Carson, Calif., in a lawsuit against the City of Carson for violating his constitutional rights.  Goldstein alleged the city was engaging in an unconstitutional taking in violation of the Fifth Amendment by imposing new rent control laws shortly after he purchased the park, forcing him to lose money for several years.  In May 2016, a federal jury sided with Goldstein on all his claims and the District Court then entered final judgment awarding him US$7.5 million for years of lost income, prejudgment interest, and attorneys’ fees.  The case has implications that extend far beyond this mobile home park, as it addresses the constitutionality of regulatory takings throughout the multibillion dollar industry. 

O’Melveny secured an important wage-and-hour victory for The Ritz-Carlton in Mark Robinson v. The Ritz-Carlton Hotel Company, a putative class action in which a banquet server alleged that the hotel’s practice of retaining a portion of the service charge it assessed on certain portions of banquet event bills violated California’s tip law, California Labor Code § 351.  At the one-day bench trial, O’Melveny presented evidence that the Ritz-Carlton’s service charge was not a tip as contemplated by the California legislature because it was a mandatory payment due the hotel for services rendered, distinguishing the banquet industry from the restaurant and taxi industries relied on by the plaintiff’s counsel in which there was an alleged custom and practice of tipping.  On July 13, 2016, the court entered its decision in favor of The Ritz-Carlton, holding that the plaintiff did not present sufficient evidence to show that there was a custom or practice of tipping in the banquet event industry.  This matter involved an issue of first impression that should have ramifications far beyond this case.  

O’Melveny represented US Airways in antitrust litigation brought against airline ticket distributor Sabre, Inc.  After three days of deliberation, eight weeks of testimony, and more than five years of litigation, a Manhattan jury returned a verdict in our client’s favor (entitling it to treble damages, in addition to attorneys’ fees and costs) after finding that Sabre unreasonably restrained trade by forcing anticompetitive contract terms on the airline in violation of the Sherman Act.  This marks a stunning victory for our client in a long and complicated legal battle that could have far-reaching ramifications for the travel-distribution industry.  

O’Melveny secured a victory for American Airlines in the Second Circuit in one of the first appellate decisions addressing the McCaskill-Bond amendment to the Federal Aviation Act.  McCaskill-Bond was enacted in 2007 to ensure that after an airline merger, employee seniority lists are integrated in a “fair and equitable manner.”  Following the 2013 merger between American Airlines and US Airways, a group of flight attendants who formerly worked at TWA challenged their seniority integration based on American’s 2001 acquisition of TWA.  The Second Circuit affirmed the district court’s judgment, agreeing with O’Melveny that objections to integration in the 2001 American-TWA merger could not be raised in a challenge to the 2013 American-US Airways merger.  

O’Melveny persuaded the First Circuit to affirm a judgment dismissing a nationwide ERISA class action challenging Fidelity’s administration of “float” in accounts used to facilitate participant withdrawals from 401(k) plans.  The case attracted the attention of the Department of Labor, which filed an amicus in support of plaintiffs’ appeal.  However, the court affirmed the judgment and established an important appellate precedent on the administration of float by 401(k) plan fiduciaries.  

O’Melveny obtained a victory in the New York Court of Appeals for Ford, convincing the court that a parent corporation cannot be held liable (absent veil-piercing) on a products liability theory for products manufactured and sold by its subsidiary, even if the parent corporation had influence over the design and marketing of the product.  In a separate matter, O’Melveny won reversal of an order certifying a nationwide class of Ford vehicle lessees claiming that their dealers had overcharged them for wear and tear on their vehicles at lease-end.  An Ohio appellate court agreed with O’Melveny that the lessees could not prove through common evidence that dealers used an incorrect standard in inspecting the lessees’ vehicles or that any lessee was actually injured as a result.  

O’Melveny achieved a precedent-setting Federal Circuit appellate victory for Mentor in its long-running patent dispute with rival Synopsys, Inc.  The firm initially defeated an effort by Synopsys to invalidate certain patent claims owned by Mentor in an inter-partes-review (IPR) proceeding that, to our knowledge, was one of the first final decisions in an IPR in which patent claims survived.  Synopsys appealed to the Federal Circuit.  O’Melveny handled Mentor’s oral argument on appeal.  Agreeing with our client, all three appellate judges affirmed the finding of no invalidity.  The Federal Circuit also determined that the Patent Trial and Appeal Board is not required to render a decision on the validity of every patent claim in an IPR.  This is the first appellate decision to clearly address and affirm the US Patent and Trademark Office’s practice of selective claim review in IPR proceedings.  

O’Melveny achieved a major victory in the New York Court of Appeals in long-running copyright litigation over pre-1972 sound recordings.  New York’s highest appeals court held that New York law does not provide a “performance right” in pre-1972 recordings, meaning that Sirius XM and other broadcasters are not required to obtain permission from or pay compensation to owners of pre-1972 recordings to play their records.  This ruling represented a complete reversal of the decision reached by the federal court in New York two years ago.  This is the first appellate decision anywhere in the country to resolve this critical issue and will impact a number of cases across the country, including matters we are handling for Sirius XM in Florida, California, Illinois, and New Jersey.  

O’Melveny filed an amicus brief in the Supreme Court on behalf of a coalition of eight leading public research universities in Fisher v. University of Texas in support of the University of Texas’s use of race in its admissions program.  In the brief, O’Melveny argued that, in crafting their admissions policies and programs, public research universities like amici had relied on the equal protection framework established by the Court in prior cases dealing with affirmative action and that a departure from that precedent would be unjustified in part because a university’s judgment about which students will best further its mission is entitled to judicial deference.  The Court in June 2016 upheld the university’s race-conscious admissions program under the Equal Protection Clause.  

O’Melveny supported victims of domestic violence in several ways in 2016.  An O’Melveny London-based team worked with Sanctuary for Families, a New York-based non-profit organization helping victims of domestic abuse reclaim their lives.  Sanctuary’s Asylum Practice Group, which assists victims of gender-based violence seeking asylum, asked O’Melveny to draft a country conditions report on domestic violence in the Republic of Georgia.  In the US, the Newport Beach office joined O’Melveny lawyers and alumni in a US$50,000 pledge to Human Options, an Orange County-based non-profit organization dedicated to breaking the cycle of domestic violence.  And through the national IMPACT Project, a pro bono program that O’Melveny lawyers helped to launch with the enthusiastic support of then Vice President Joe Biden, we have joined with other firms and a leading DV shelter to provide “wrap around” legal services to mothers and children whose lives have been interrupted by violence and abuse.  

We helped craft The Pacific Council on International Policy’s GTMO Task Force report, which recommended empowering federal judges to preside over the Military Commission trials taking place at Guantánamo Bay.  The task force’s aim is to fairly and transparently expedite the Guantánamo trials by putting US district court judges in charge of the military proceedings against those accused of plotting the 9/11 attacks and the bombing of the USS Cole.  The O’Melveny partner who co-chaired the task force was the first of 25 members who have traveled to Guantánamo to serve as official nongovernmental observers.  The report has received positive feedback from government officials, and the task force is now working on legislation to implement the recommended changes.  The task force is a bipartisan group mostly comprising practicing lawyers, though some members have government, public policy, academic, and military backgrounds. 

O’Melveny and the non-profit Kids In Need of Defense (KIND) hosted pro bono legal clinics with dozens of lawyers from companies including Pfizer, CoreLogic Inc., PIMCO, Apria Health Care, Southern California Gas Co., Oaktree Capital, Warner Bros., and Fox.  Teams of O’Melveny and in-house lawyers conducted intake interviews of unaccompanied, non-English speaking children facing deportation.  The work included a thorough legal evaluation of the children’s eligibility for various immigration remedies, followed by the preparation of detailed written profiles of the child’s background, family history, hardships, and overall immigration experience.  These analyses are used to help the children qualify for certain benefits and resources, including ongoing pro bono representation.  The clinics served nearly 50 children.  

O’Melveny represented the Staten Island Mental Health Society, which serves Staten Island children and their families, in the Society’s merger with and into Richmond University Medical Center.  The merger is expected to preserve, in the face of the Society’s severe financial distress, its critical mental health services to the local community.  The work came to the firm through the Lawyers Alliance for New York and included negotiating merger and management services agreements, which were subject to approval by a thicket of city, state, and federal agencies.  The merger is expected to be consummated in 2017.  SIMHS called O’Melveny a “champion for the under-served” for its pro bono work on this matter.  

In an effort to improve veteran hiring, O’Melveny hosted more than 35 companies at Los Angeles City Hall in an event featuring General (Ret.) David H. Petraeus, Mayor Eric Garcetti, Judge Dean Pregerson, the Los Angeles Mayor’s Office of Veterans Affairs, and more than 100 corporate leaders.  Discussion topics included ways universities can help veterans prepare for civilian life and how companies can recognize the types of experience veterans will bring to their organizations.  Participating were representatives from Activision, AECOM, Amazon, Bank of America, Grant Thornton, O’Melveny, and the nonprofit U.S.VETS, the largest provider of comprehensive services for homeless and at-risk veterans in the US.  

O’Melveny filed an amicus brief in the Supreme Court on behalf of the Guttmacher Institute and a coalition of social science researchers in Whole Women’s Health v. Cole in support of Whole Women’s Health’s challenge to two regulations on abortion clinics enacted by the Texas Legislature.  The brief argued that, according to extensive social science research, the types of regulations at issue not only do nothing to protect women’s health, but are in fact affirmatively harmful to women.  The Supreme Court agreed and struck down the regulations.  Justice Ginsburg’s concurring opinion cited O’Melveny’s brief twice.