The legal community signs statement declaring these suits are “without factual or legal basis”.
In response to the recent PR machine from former SEC commissioner and current NYU Law professor Robert Jackson and Yale Law School professor John Morley, which have put out multiple statements in the press noting they intend to litigate SPACs for Investment Company Act of 1940 issues, an astonishing 49 law firms have coalesced to release a response to these allegations.
For context, the current situation started last week when Robert Jackson and John Morley, filed a civil suit against Pershing Square Tontine Holdings (NYSE: PSTH), claiming the deal acted as an investment company in their previously proposed SPAC transaction involving Universal Music Group (“UMG”). They claimed Pershing Square Tontine violated rules which require these deals to adhere to the Investment Company Act of 1940 despite the UMG transaction being terminated over one month ago.
Subsequent to that, the professors filed additional suits against both GO Acquisition Corp (NYSE: GOAC) and E.Merge Technology (Nasdaq: ETAC), both of which conveniently had less than 12 months left on their clocks and were high profile SPAC teams with high profile underwriters. And even further to that, the law professors let it be known via Reuters that they intend to sue “dozens” of additional SPACs based on “reforming” the asset class.
However, as of this morning, the legal community appears to be pushing back. To have 49 law firms, many of which are top-tier, sign their names to a statement that says, “The undersigned law firms view the assertion that SPACs are investment companies as without factual or legal basis…” , demonstrates how serious they take this matter.
Getting lawyers to agree on anything is usually pretty difficult. Getting 49 law firms to agree on a statement that contradicts a former SEC commissioner and law professor is, frankly, remarkable. It also shows they are not going to just sit back and take it. These lawyers just rolled up their shirt sleeves and are ready to get down to business.
What’s interesting to note is that many of these firms also have former SEC lawyers who worked in the office of investment management, which determines what is and isn’t an investment company. Including several firms that have directors of that office. Most likely these individuals have been consulted and wanted their firms names attached to this statement.
Now that the lawyers have returned the volley, it will be interesting to see how Jackson and Morley respond. After all, they just had 49 law firms tell them they are wrong.
Below is the released statement in its entirety.
49 of the Nation’s Leading Law Firms Respond to Investment Company Act Lawsuits Targeting the SPAC Industry
August 27, 2021
Recently a purported shareholder of certain special purpose acquisition companies (SPACs) initiated derivative lawsuits asserting that the SPACs are investment companies under the Investment Company Act of 1940, because proceeds from their initial public offerings are invested in short-term treasuries and qualifying money market funds.
Under the provision of the 1940 Act relied upon in the lawsuits, an investment company is a company that is or holds itself out as being engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting or trading in securities.
SPACs, however, are engaged primarily in identifying and consummating a business combination with one or more operating companies within a specified period of time. In connection with an initial business combination, SPAC investors may elect to remain invested in the combined company or get their money back. If a business combination is not completed in a specified period of time, investors also get their money back. Pending the earlier to occur of the completion of a business combination or the failure to complete a business combination within a specified timeframe, almost all of a SPAC’s assets are held in a trust account and limited to short-term treasuries and qualifying money market funds.
Consistent with longstanding interpretations of the 1940 Act, and its plain statutory text, any company that temporarily holds short-term treasuries and qualifying money market funds while engaging in its primary business of seeking a business combination with one or more operating companies is not an investment company under the 1940 Act. As a result, more than 1,000 SPAC IPOs have been reviewed by the staff of the SEC over two decades and have not been deemed to be subject to the 1940 Act.
The undersigned law firms view the assertion that SPACs are investment companies as without factual or legal basis and believe that a SPAC is not an investment company under the 1940 Act if it (i) follows its stated business plan of seeking to identify and engage in a business combination with one or more operating companies within a specified period of time and (ii) holds short-term treasuries and qualifying money market funds in its trust account pending completion of its initial business combination.[1]
None of the firms subscribing to this document intends hereby to give legal advice to any person. Any person seeking legal advice should consult with an attorney.
[1] Certain of these lawsuits also claim that personnel of the SPAC sponsor are acting as unregistered investment advisers under the Investment Advisers Act of 1940 by advising on the SPAC business combination (which the plaintiff incorrectly asserts constitutes advice as to investing in, purchasing, or selling securities). The law firms listed herein also view this claim as without legal basis and do not believe that such personnel or the SPAC sponsor are unregistered investment advisers.
Arnold & Porter
Baker & McKenzie LLP
Baker Botts LLP
Cadwalader, Wickersham & Taft LLP
Cleary Gottlieb Steen & Hamilton LLP
Cooley LLP
Cravath, Swaine & Moore LLP
Davis Polk & Wardwell LLP
DLA Piper LLP (US)
Ellenoff Grossman & Schole LLP
Eversheds Sutherland (US) LLP
Fenwick & West LLP
Freshfields Bruckhaus Deringer US LLP
Fried, Frank, Harris, Shriver & Jacobson LLP
Gibson, Dunn & Crutcher LLP
Goodwin Procter LLP
Graubard Miller
Greenberg Traurig, LLP
Katten Muchin Rosenman LLP
King & Spalding LLP
Kirkland & Ellis LLP
Kramer Levin Naftalis & Frankel LLP
Latham & Watkins LLP
Loeb & Loeb LLP
McDermott Will & Emery LLP
Milbank LLP
Morgan, Lewis & Bockius LLP
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Nelson Mullins Riley & Scarborough LLP
Orrick, Herrington & Sutcliffe LLP
Paul Hastings LLP
Paul, Weiss, Rifkind, Wharton & Garrison LLP
Proskauer Rose LLP
Reed Smith LLP
Ropes & Gray LLP
Shearman & Sterling LLP
Sidley Austin LLP
Simpson Thacher & Bartlett LLP
Skadden, Arps, Slate, Meagher & Flom LLP
Sullivan & Cromwell LLP
Vinson & Elkins LLP
Wachtell, Lipton, Rosen & Katz
Weil, Gotshal & Manges LLP
White & Case LLP
Willkie Farr & Gallagher LLP
Wilmer Cutler Pickering Hale and Dorr LLP
Winston & Strawn LLP
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