TACKLING YOUR BIGGEST
CHALLENGE TODAY IN
PURSUIT OF YOUR BOLDEST VISION OF TOMORROW

Our dedicated lawyers combine their passion for business with a deep understanding of the law to help you knock down barriers to success.

TACKLING YOUR BIGGEST CHALLENGE TODAY IN PURSUIT OF YOUR BOLDEST VISION OF TOMORROW

Our dedicated lawyers combine their passion for business with a deep understanding of the law to help you knock down barriers to success.

A LETTER FROM OUR CHAIR

At McDermott, our mantra is #AlwaysBetter. It means that we wake up each morning thinking about how we can be that much better than the day before. This drive for constant improvement is in our DNA—and it pushes us, every day, to be a better partner for you. We do this by working to fully understand your world—from the markets you operate in to the internal dynamics you face. It’s about going beyond delivering exceptional legal work to supporting your enduring success. In doing this, we strive to be your indispensable partner.

Ira Coleman, Chairman
McDermott Will & Emery

WE HELP YOU

MOVE FASTER

Praxair: Moving at the Speed of Business

THE CHALLENGE

In order to proceed with its planned $90 billion merger with Linde,
Praxair had to complete strategic asset divestitures in 15 jurisdictions
within one year to meet strict German financial market rules.

THE SOLUTION

McDermott fielded a team of more than 100 lawyers across Europe and the
United States, and led 9 other law firms in additional jurisdictions, to
coordinate a competitive auction process involving 70 bidders around the
world. The successful and on-time divestments secured all regulatory
approvals, clearing the path for the merger that created the world’s largest
supplier of industrial gases.

Cross-Practice Team Recovers $6 Million from Bitcoin Thief in Short Order

THE CHALLENGE

In the emerging cryptocurrency space, most investors store their assets in digital wallets,
where—unlike traditional bank accounts—they earn no interest. In the last few years, cryptocurrency
investors have increasingly sought to earn a yield on their cryptocurrency holdings by lending Bitcoin
and other cryptocurrency to trading and lending platforms in exchange for interest.

THE SOLUTION

To recover the cryptocurrency from Alexander for their client, the McDermott team prepared an
unprecedented emergency motion, relying on cryptocurrency tracing, expert reports and key
blockchain-based arguments. They recognized that it was crucial to move quickly, and their speed,
cryptocurrency savvy and pragmatic approach to the bankruptcy proceedings—focusing on recovering
their client’s assets rather than chasing victories with no tangible results—helped drive the successful
outcome.

DIG DEEPER

INX Leads the Finance Industry into the Future with Registered Public Offering of “Security Tokens”

THE CHALLENGE:

When INX Limited formed in 2017, its founders recognized that market enthusiasm around bitcoin and other blockchain assets would lead to a new standard in the finance industry.

Looking beyond the unregistered initial coin offerings (ICOs) that marked that era, INX developed a forward-thinking vision: work with regulators to bring the offering and trading of blockchain assets within the legal framework that governs securities. To accomplish this goal, INX set out to create its own security token—a relatively new financial instrument—that would possess a hybrid of characteristics, including a share of cash flow from INX operations and the right to redeem the token as payment for blockchain asset trades performed on INX trading platforms.

INX planned to conduct a public offering of their INX Token and register that offering with the Securities Exchange Commission (SEC). Although blockchain assets had been sold in private markets and through unregistered ICOs, there was no precedent for going through a registration process with the SEC for a public offering of security tokens.

OUR OBJECTIVE:

The company approached a cross-practice legal team at McDermott led by Mark Selinger and Dan Woodard to help develop the creative solutions needed to achieve its unique business goals.

The McDermott team helped INX structure a new product for a new era, developing a consensus between regulators and blockchain enthusiasts around features, terminology and disclosure that would highlight the capabilities of blockchain technology while also meeting the standards of federal and state securities laws.

THE OUTCOME:

Nearly three years after INX confidentially filed for an IPO in January 2018, the SEC declared the first-of-its-kind offering of security tokens effective in August 2020. Less than a month later, after receiving purchase commitments that exceeded the offering minimum, INX completed an initial closing.

Using the proceeds from the offering, INX plans to continue to develop and launch its regulated trading platforms for cryptocurrencies and security tokens.

“We approached McDermott in late 2017 with an incredibly challenging task: to complete the registration of the first security token IPO. Such a task was seen as impossible at the time and had never been brought before the SEC,” said Shy Datika, founder and president of INX Limited. “The McDermott team worked with us for over 1,000 days and spanning three different global time zones to get this momentous achievement done. They were instrumental to our success on this industry first.”

DIG DEEPER:

Throughout the lengthy process, including numerous rounds of SEC review and commentary, INX leaned on its McDermott team to navigate the regulatory landscape, develop creative solutions and secure a favorable outcome.

For background, public offerings undergo review by the SEC staff, a process that typically takes three to six months. During the process, companies may receive varying levels of SEC staff comments requesting additional clarification on unique aspects of their business operations or capital structure. Because INX was seeking to register a new financial product that is recorded and traded using a new technology, members of the SEC staff sought clarity around more fundamental questions, such as how to characterize the INX security token, how to accurately and completely describe its features and risks, and how the INX token and the technologies on which it is developed fit into the world of existing securities laws. In addition, the novelty of blockchain technology and security tokens and their potential impact on securities trading markets increased the level of scrutiny at the SEC, subjecting INX’s registration to review by a variety of divisions that would not weigh in on a more typical public offering.

The McDermott team worked closely with the SEC, representatives from Ernst & Young (Israel), counsel from Horn & Co (Israel) and counsel from Hassans International Law Firm (Gibraltar) to identify how INX could work within the current regulatory infrastructure to launch a registered offering of its security token. Working through those questions opened a more detailed discussion of blockchain assets and helped INX, the McDermott legal team and the SEC think outside the box and come to a consensus on appropriate disclosures regarding the INX token, the company and the offering.

“Our client had both the foresight and the patience to pursue a registered offering,” said Mark Selinger, lead for INX’s US counsel and New York-based partner. “By working with US regulators, our client has pushed past the next boundary toward widespread adoption of blockchain assets both by retail investors and mainstream financial institutions.”

To learn more about McDermott’s transactions capabilities, click here.
Read our press release about the matter.
Read the Law 360 article about the initial token offering.

Exceeding Client Objectives for a Consensual Resolution to Complex Bankruptcy Proceedings

THE CHALLENGE:

After years of selling services at a loss to grow its customer base, Agera Energy—a retail electricity and natural gas provider for commercial, industrial and residential customers in 16 states—realized its business was no longer viable. The company decided to file for chapter 11 bankruptcy protection after evaluating strategic alternatives.

At the time of the filing, Agera had defaulted on its credit agreement with secured lender BP Energy Company, which wanted to foreclose on Agera’s assets and shut down the company to recoup as much of its investment as possible. At the time, Agera owed approximately $180 million to BP, $35 million to its second lien lender, Colorado Bankers Life Insurance Company, and approximately $160 million to unsecured creditors.

Agera’s management team was certain that they could sell the company’s assets to repay more of its debt and minimize service disruptions to customers. To help convince BP that finding a buyer and conducting a sale process through bankruptcy was the superior alternative, Agera brought in a skilled cross-practice group of McDermott lawyers with experience in complex chapter 11 cases.

OUR OBJECTIVE:

Led by Darren Azman in restructuring and Debra Harrison in transactions, with energy regulatory support from Rob Lamkin, Agera’s team of McDermott lawyers stepped in to help their client navigate the challenging, highly regulated legal landscape they faced.

To achieve Agera’s goals, the team needed to convince BP that selling the company through bankruptcy presented the best option for maximizing Agera’s value. Agera presented several liquidation scenarios to BP, illustrating that a sale process through bankruptcy and an orderly wind-down of the remaining assets would yield a greater recovery to BP and other creditors than a foreclosure under state law.

When BP was on board, Agera sought a consensual chapter 11 process, negotiated a restructuring support agreement with BP and coordinated extensively with the unsecured creditors’ committee throughout the case. In working toward that consensual process, the McDermott team identified three primary objectives:

First, find a buyer, negotiate the highest possible purchase price and close the sale. Second, secure confirmation of the client’s plan of liquidation from the bankruptcy court. Third, obtain a meaningful financial recovery for Agera’s unsecured creditors.

THE OUTCOME:

Following a lengthy search for a buyer, Agera signed an agreement with Exelon Generation Company/Constellation to sell the majority of its 70,000 existing customer contracts for $24.75 million. The deal will allow Exelon to scale its retail energy business in strategic markets.

The sale proceeds Agera would ultimately realize depended entirely on maintaining its customer contracts until the sale with Exelon closed. Energy customers generally have the right to switch providers at any time, and each lost contract would reduce the final purchase price that Exelon paid to Agera. Between the bankruptcy filing and closing the transaction, the McDermott team coordinated seamlessly across practices to hold together the majority of Agera’s customer book and keep the sale on track.
On the regulatory side, McDermott lawyers deflected state regulators that were owed millions and sought to suspend and revoke Agera’s licenses to sell energy because of its failure to comply with renewable portfolio standards. Had Agera lost its license in any state, all of its customers there would have returned to a default utility provider, resulting in a significant decrease in the company’s final sale price.

When a senior sales employee at Agera was suspected of taking customer data to a competitor, McDermott’s litigation group conducted an internal investigation to determine the extent of the damage. And when one Agera’s competitors was suspected of poaching Agera’s sales employees in contravention of a non-solicitation agreement, a separate McDermott litigation team sought and obtained a temporary restraining order on an expedited basis to minimize harm.

In all of their efforts, the McDermott team was racing against the clock. Under the terms of the purchase agreement with Exelon, they had just 120 days to work with 91 different utility companies in transferring Agera’s retail energy customers to Exelon. The task demanded swift, savvy legal action and compliance with different regulatory frameworks in each of the 16 states where Agera operated.

As a result of the sale, BP is expected to recover up to approximately 85% of its outstanding claims against Agera, a significantly greater distribution than it anticipated. In addition, under the approved plan of liquidation, Agera’s unsecured creditors—who would have received nothing without the bankruptcy filing—are expected to recover up to 16% of their outstanding claims from the post-confirmation Agera Liquidation Trust.

DIG DEEPER:

Agera’s cross-practice legal counsel at McDermott, from restructuring and transactions to regulatory, insurance, real estate, labor and litigation, collaborated to employ innovative strategies and solutions to overcome the complexities of filing for bankruptcy and selling Agera’s customer contracts. The client and its various constituents were incredibly pleased with the consensual resolution of the case.

Because of the legal team’s creativity and agility, the American Bankruptcy Institute honored Agera Energy with its 2020 “Asset Sale of the Year” award. Each year, the award recognizes just one distressed asset sale that displays excellence across the full spectrum of the sale process.

A representative of one of the primary constituents in the case, who took an adverse position to Agera in many instances during the process, told the McDermott team, “Thank you for all your work. There were so many potential complicated road blocks…that required a lot of strategy and diligence. I know we weren’t always easy to work with. My hope is that we will not have to experience this again! However, if our paths cross again, it would be a pleasure.”

To learn more about McDermott’s transactions capabilities, click here.

GO FURTHER

Strategic Impact Financing Helps UNICEF Champion Global Children’s Education

THE CHALLENGE:

Around the world, we face a crisis in education. Situations ranging from wartime destruction to the COVID-19 pandemic interrupt children’s learning, which can lead to higher levels of illiteracy and economic deterioration.

To address acute global education needs, empower educators to deliver results and improve learning outcomes for children around the world, the Education Outcomes Fund (EOF) moved to operate as an independent trust fund hosted by the United Nations Children’s Fund (UNICEF). The innovative partnership would provide an ambitious new mechanism for large-scale social financing focused on children’s education.

To advise them on the design of EOF’s independent hosted partnership at UNICEF, the team needed legal counsel with deep knowledge and specialized experience in the impact finance space. At the recommendation of other United Nations agencies, they turned to McDermott’s Ranajoy Basu and Priya Taneja.

OUR OBJECTIVE:

Because this education outcomes fund followed a joint hosting model—with EOF becoming part of UNICEF when the deal closed—the McDermott legal team needed to draft an agreement that clearly and simply separated the role of UNICEF, as the fund trustee, from the role of EOF, as the fund administrator.

Despite anticipating a variety of complexities in crafting a deal that was clear without being too rigid, the team also aimed to create a fund structure that could easily be replicated by any organization for other impact finance applications in the future. They tackled three major issues in structuring this unique partnership.

First, the team had to address the complex nature of the deal: To champion the cause of educating children around the world, UNICEF and EOF hoped to aggregate social impact investments not just from traditional governmental sources, but also from sponsors in the private sector. This blending of public and private finances raised thorny regulatory questions.

Second, expecting that cash would flow between the fund and sponsors around the world, the team sought multi-jurisdictional solutions for regulatory, tax and charity law issues as they scaled the structure for a global outcome fund.

Finally, the team took into consideration the need for children’s education in the remotest corners of the world, which meant their global structure also needed to be able to empower grassroots movements in hyperlocal areas where funding is required.

THE OUTCOME:

The McDermott legal team worked for a year and a half to create a finely balanced structure and close the deal. As a result, EOF is now part of UNICEF and has an effective tool it can use to take action and achieve its goals. Within months of the education outcome fund’s launch, its $26.5 million program in Sierra Leone and $30 million program in Ghana had been fully financed.

Peter Mason, general counsel for UNICEF, praised McDermott’s “wise counsel to the team [to help] keep things focused on practical solutions, [which] added a lot of value.”

Jared Lee, co-founder and director of programs at EOF, said, “We are deeply committed to improving the effectiveness of aid, philanthropy and government spending by developing large-scale outcomes funds for education and employment. Our hosting at UNICEF is a critical step towards being able to do that, and we’re very grateful for the support from McDermott in helping navigate the legal complexities of the arrangement.”

GO FURTHER:

UNICEF and EOF’s focus, drive and desire to have a positive impact on children’s education brought their objectives directly in line with the McDermott team’s passion for applying their legal skills toward the greater good.
As is typical in impact finance, the success of the UNICEF and EOF partnership from this point forward will be measured in steps, as they use the tool developed by their legal team to progress against their objectives. After projects are financed and funding is deployed to bring about change on the ground, measuring the real social impact of the program can take years.

The legal team will also monitor how the market reacts to the transaction, including whether other organizations use their fund structure as a model. Those indicators will help determine whether it will be a successful means for deploying much-needed funding in the social development sector.

Learn more about McDermott’s transactions and impact finance capabilities.

Two Ocean Trust Paves the Way for Secure Cryptocurrency Investing

THE SITUATION:

In recent years, cryptocurrency has presented an exciting opportunity to invest in a new asset class—at the cost of accepting certain risks. Unlike traditional financial assets, cryptocurrency has lacked legal protection and clarity around federal and state regulatory oversight.

As a result, the cryptocurrency industry has been plagued by impropriety, malfeasance and even outright theft. Without confidence that they could safely secure and efficiently manage these assets, many investors and their professional advisers have avoided investing.

One of the biggest obstacles involved registered investment advisers (RIAs). Federal regulations require RIAs to store their clients’ assets with a “qualified custodian.” The cryptocurrency industry was collectively confused as to what constituted a qualified custodian: Banks and other financial institutions will not often custody cryptocurrency. The SEC and other regulators have issued very little guidance on the subject, leaving RIAs and others in the dark about how to store cryptocurrency. Given the regulatory uncertainty concerning custody, many RIAs and other financial advisers opted to avoid recommending investing in digital assets.

Wyoming-based trust company Two Ocean Trust identified this custody issue as an opportunity.

THE CHALLENGE:

Eyeing untapped potential, the company diverged from its competitors and sought regulatory support to act as a qualified custodian for cryptocurrency. With that unprecedented support, Two Ocean Trust would be authorized to protect customers’ assets, providing registered investment advisers, high net-worth individuals, family offices and other investors with a safe, secure option for investing in cryptocurrency. As a key service differentiator, such regulatory support would also attract new clients and put Two Ocean Trust on the path to becoming a leader in cryptocurrency custody.

To help the company successfully navigate the complex, novel issues associated with cryptocurrency custody, and to provide a comprehensive view of the regulatory landscape, Two Ocean Trust turned to a sophisticated multi-disciplinary team at McDermott.

OUR OBJECTIVE:

The McDermott team’s specialized knowledge and experience shaped their strategic approach to the regulatory challenges confronting Two Ocean Trust.

Private Client practitioners Elise McGee and James Cundiff used their trust and estate experience to complement the deep industry knowledge of FinTech and Blockchain advisers David Taub and Joseph B. Evans. This collaboration was uniquely suited to helping Two Ocean Trust achieve its main business objective: Solving cryptocurrency’s “qualified custodian” problem.

Drawing on their strong reputation and longstanding relationships with state banking regulators at the Wyoming Division of Banking, the McDermott team worked on Two Ocean Trust’s behalf to develop a pathway for the company to be recognized as a qualified custodian of digital assets, including cryptocurrency. Over a period of several months, they applied their sophisticated FinTech and Blockchain understanding to a deep analysis of state and local laws, providing legal precedence, theories and rationale that addressed state regulators’ concerns and brought them into agreement that Two Ocean Trust was appropriately positioned to become a qualified custodian for cryptocurrency.

The team also guided Two Ocean Trust through the federal requirements of investment, banking, trust and securities laws, seeking to strike a fine balance between state and federal interests. They needed to obtain the necessary authority from the Wyoming Division of Banking without provoking a negative reaction from regulators at the SEC.

THE OUTCOME:

Two Ocean Trust and its McDermott legal team’s efforts culminated in “no-action” relief from the Wyoming Division of Banking, allowing Two Ocean Trust to act as a qualified custodian of cryptocurrency. The company was the first to receive a letter issued by a state or federal regulator to acknowledge them as an appropriate qualified custodian of cryptocurrency.

Setting an important precedent for the industry, the Wyoming Division of Banking also issued the first-ever regulatory opinion by a state or federal banking regulator that a trust company is permitted to act as a qualified custodian for digital assets under the Investment Advisers Act of 1940.

Following the opinion, SEC Commissioner Hester Peirce cited Wyoming as an “extremely progressive” regulator during an interview, noting that the SEC could learn from its approach to cryptocurrency.

“McDermott was the perfect partner to help provide clarity in this rapidly evolving crypto space,” said Joel Revill, Two Ocean CEO. “McDermott’s work didn’t just benefit Two Ocean Trust; it set an important precedent for the entire digital asset industry. This landmark regulatory determination provides much-needed clarity concerning digital asset custody. We believe it will engender the confidence and regulatory certainty necessary to foster additional investments in digital assets by those who previously avoided this space due to custody concerns. Thanks to the no-action letter that McDermott helped us secure, there has been a very positive ripple effect across the entire digital asset investment ecosystem.”

GO FURTHER:

In securing regulatory support and obtaining a “no-action” letter, Two Ocean Trust has blazed a trail in cryptocurrency custody and put Wyoming on the map as a major US epicenter for the entire digital asset industry.

Today, Two Ocean offers a full-service wealth management platform to facilitate digital asset investing and to protect its customers’ investments in cryptocurrency. The firm has emerged as a leading voice in the adoption of digital assets by sophisticated investors, and continues to offer distinct private client investment and trust services to clients based around the globe.

McDermott’s team is honored to have played a part in forming an initial cryptocurrency regulatory framework, and they intend to continue urging greater regulatory clarity for market participants.

Learn more about McDermott’s Private Client and FinTech and Blockchain capabilities.

Read our press release about the matter.

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Our team works together every day across geographies, practices and industries to deliver the insights and results that matter to your business and to the people you serve.

Our service is personalized and personable. That’s because we care deeply about what we do and who we do it for.

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Together, we fuel missions, knock down barriers and shape markets. Pride and determination abound at McDermott because every member of our team is respected, supported and inspired to exceed.

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Our team collaborates across practice groups and geographies to deliver nuanced perspectives to elevate strategy and surface highly effective solutions. More than 1,200 lawyers strong, there isn’t a legal issue we haven’t discussed or an industry segment into which we haven’t delved, and we thrive on working together to find the right answer for our clients.

"OUR GOAL IS TO FULLY UNDERSTAND YOUR WORLD–FROM HOW YOU APPROACH YOUR MARKET TO THE INTERNAL CHALLENGES YOU FACE–AND DETERMINE HOW WE CAN BEST HELP YOU KNOCK DOWN BARRIERS AND ACHIEVE SUCCESS."

IRA COLEMAN, CHAIRMAN
McDERMOTT WILL & EMERY

GOING ABOVE & BEYOND FOR OUR CLIENTS, OUR PEOPLE & THE COMMUNITIES WE SERVE

Integrity. Creativity. Passion. They underpin everything we do and set McDermott apart. From committing to diversity in our hiring practices and embracing Firm-wide pro bono goals to providing time for mindfulness and sponsoring days of service in our communities around the world, we know that our best work isn’t limited to the boardroom or the courtroom.

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In 2022, 41% of our summer associates are racially and/or ethnically diverse

STRATEGIC IMPACT FINANCING HELPS UNICEF CHAMPION GLOBAL CHILDREN’S EDUCATION

THE CHALLENGE

To address acute global education needs, empower educators to deliver results and improve learning outcomes for children around the world, the Education Outcomes Fund (EOF) moved to operate as an independent trust fund hosted by the United Nations Children’s Fund (UNICEF).

EOF and UNICEF needed legal counsel with deep knowledge and specialized experience in the impact finance space to advise them on the design of this innovative partnership, which would provide an ambitious new mechanism for large-scale social financing focused on children’s education.

THE SOLUTION

The McDermott team addressed a series of novel, complex legal issues, working for a year and a half to create a finely balanced structure and close the deal. As a result, EOF is now part of UNICEF and has an effective tool it can use to take action and achieve its goals.

Within months of the education outcome fund’s launch, its $26.5 million program in Sierra Leone and $30 million program in Ghana had been fully financed.