The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Edwin O’Connor, a partner in Goodwin’s Life Sciences group and co-chair of the Capital Markets practice, has a broad-based capital markets practice and represents issuers and underwriters in public and private corporate finance transactions, both in the United States and internationally. His experience encompasses initial public offerings, follow-on equity offerings, investment grade, high-yield and convertible debt offerings, and offerings of preferred, hybrid, and derivative securities. Mr. O’Connor also advises public companies on a wide variety of corporate and securities matters and represents public companies as general corporate and securities law counsel. In that capacity, he provides advice in all aspects of corporate governance and securities law compliance.
Deborah Birnbach, partner and co-chair of Goodwin’s Complex Litigation & Dispute Resolution and Public M&A/Corporate Governance practices, specializes in securities litigation, including class action defense; SEC, regulatory and internal investigations; M&A-related litigation; stockholder disputes; fiduciary duty claims; and proxy contests. Ms. Birnbach represents issuers and their directors and officers in securities and shareholder litigation and corporate governance matters. She also represents clients in FINRA inquiries and SEC investigations concerning possible accounting irregularities, corporate disclosures to investors, and insider trading, among other matters.
Describe your practice area and what it entails.
Edwin and Deborah: Goodwin’s capital markets lawyers are market leaders across the U.S. and execute on some of the most unique and impressive deals at the intersection of capital and innovation. We boast a strong bench of capital markets industry-focused lawyers who are embedded with our key industry groups and are particularly skilled in handling healthcare, life sciences, real estate, and technology-specific offerings. Current and prospective clients trust these skilled capital markets practitioners because not only do these lawyers know the inner workings of a capital market transaction, but they also fully understand the complexities of the industries in which these companies respectively sit.
A cornerstone of our success is our full-service practice in major markets across all industries. Our vast footprint gives us the ability to effectively service clients in geographies that are most frequently accessing the capital markets, while our global team further adds to the strength of our bench.
Deborah: Whether they are listed in the U.S. or dual-listed in other countries, we advise our public company clients how best to achieve their business goals, deploying capital, obtaining liquidity, and raising new capital in global markets. We advise on how to meet those business goals while ensuring securities law compliance and mitigating risk, including SEC enforcement and litigation risk in volatile markets. When market volatility leads to class action and derivative litigation against officers and directors, we obtain dismissal at the earliest juncture, in part based on strong securities disclosures. When the SEC investigates, our litigators advocate in a collaborative way to help regulators understand our clients’ businesses and industries to get the regulators to the right conclusions.
What types of clients do you represent?
Edwin: Our team has extensive experience representing both issuers and underwriters in capital markets transactions, in the U.S. and internationally, and the litigation and investigations that often follow. Our practitioners have particular experience with debt and equity capital markets transactions across the healthcare, life sciences, technology, and real estate sectors.
A sampling of the clients we’ve advised over the past 12 months includes: DoorDash, a technology company connecting customers with their favorite local and national businesses; Oscar Health, the first health insurance company built around a full stack technology company platform; COMPASS Pathways, a mental health care company dedicated to accelerating patient access to evidence-based innovation in mental health; Plug Power, who is building the hydrogen economy as a leading provider of comprehensive hydrogen fuel cell turnkey solutions; Marqeta, whose modern card issuing platform empowers its customers to create customized and innovative payments cards; and Moderna, a global biotechnology company pioneering messenger RNA (mRNA) vaccines for COVID-19 and therapeutics to create a new generation of transformative medicines for patients, among others.
What types of cases/deals do you work on?
Edwin: My experience encompasses initial public offerings, follow-on equity offerings, investment grade, high-yield and convertible debt offerings, and offerings of preferred, hybrid and derivative securities.
Deborah: I represent issuers and their directors and officers in SEC investigations, securities and shareholder litigation, and corporate governance matters, including defending allegations of insider trading, misleading disclosures, M&A transactions, insufficient deal consideration, improper revenue recognition and other alleged accounting irregularities, and breach of fiduciary duty, among other issues.
How did you choose this practice area?
Edwin: I was interested in the financial markets and learned that as a capital markets lawyer I would have a role in their operation. One of the more exciting areas of my practice is taking private companies through their IPO. It’s a very collaborative process with all parties working towards the same goal. It is one of the most transformative stages of a company’s lifecycle and its very satisfying to be a part of that.
Deborah: We know that it takes years and millions of dollars to bring life-saving drugs through the clinical and regulatory approval process to get to patients. Capital markets are the necessary fuel for that amazing innovation. With market risk comes market volatility. If stock prices drop, lawsuits are often filed. Defending the well-intentioned officers and directors of those public companies in SEC and shareholder litigation is rewarding. Standing up in court to say “Your Honor, my client is just trying to cure cancer” is about as rewarding as it gets as a litigator. And the day that the Moderna COVID-19 vaccine efficacy data was announced was the single best day of my legal career.
What is a typical day like and/or what are some common tasks you perform?
Edwin: Some days are spent participating in board meetings, some days are spent negotiating deal docs, some days are spent in drafting sessions for an IPO prospectus, and some days I am going from issue to issue managing a team as they come up with solutions.
Deborah: While I argue motions to dismiss securities cases in federal and state court, that is not an everyday occurrence. Some days I work on briefs for cases, or advise boards of directors on their fiduciary duties in connection with mergers or other transactions. I often field questions on Rule 10b5-1 trading plans for executives or from general counsels as to whether information is material under the securities laws for disclosure purposes or for purposes of allowing employees to trade. I often review and revise issuers’ SEC filings to provide disclosure advice under the securities laws.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Edwin and Deborah: It is important for someone who wants to practice in this space to follow the markets and industries (i.e., read the Wall Street Journal, Financial Times or other trade press) to keep apprised of changing trends and regulations. As for course work, one should focus on Corporations, Securities Regulation, Tax, Corporate Finance, and Accounting.
What do you like best about your practice area?
Edwin and Deborah: Knowing that our life sciences clients are committed to saving patients, and our technology clients are pioneering global technological advancements. Our clients are brilliant scientists, doctors and inventors who are at the forefront of transformation, and these R&D efforts are expanded and enhanced when a company gains access to the capital markets. It is an honor to partner with these extraordinary clients, serving as their external legal counsel and trusted business advisor, to help achieve their goals as they embrace the promise and potential of innovation.
What is unique about your practice area at your firm?
Edwin and Deborah: U.S. News - Best Lawyers “Best Law Firms” doesn’t award you the “Biotechnology Law Firm of the Year” designation seven times over the last eight years unless you exhibit true industry depth. Goodwin’s capital markets team is supported by the full resources of our industry practice groups, with many of our capital markets lawyers and litigators specializing in particular industry verticals, giving both issuer and underwriting syndicate clients targeted market analysis. This industry focus sets us apart from many other firms, and has been a terrific platform for our practice. We take a client-centric approach by knowing their businesses, and the industry-specific challenges under the securities laws, regulatory, and capital markets environment. That includes knowing the bankers and market dynamics at any given time, as well as the SEC’s priorities.
What kinds of experience can summer associates gain at this practice area at your firm?
Edwin: The vibrant capital markets landscape we experienced this past year provided numerous opportunities for our summer associates to join IPO or secondary offering teams. As part of their training, we often have summer associates participate in Zoom meetings with clients and bankers to observe the process.
Deborah: Court hearings also provide opportunities for summer associates to watch arguments and trials, particularly but not exclusively in instances where the summer associate has handled a research or motion writing assignment related to the case. SEC investigations often allow summer associates to participate in witness interviews, and yes, take notes, during investigations.
How important is teamwork in the securities/capital markets work that you do?
Edwin and Deborah: Critical. These processes involve large teams and coordination is essential to them working well. We work with integrated teams of transactional and litigation attorneys to best serve our clients’ needs in those industries, accomplishing their need to raise capital while mitigating risk throughout the process. Our capital markets lawyers take a holistic approach to each offering by not focusing on a specific phase of the deal, but rather using a forward-looking mindset to ensure we are setting these companies up for success in the global markets. Goodwin prides itself on the strength of its industry-focused capital markets and securities law and litigation practitioners who not only execute these complex transactions but also understand the intricacies of the industries in which our clients operate. As regulatory scrutiny increases, it’s more important than ever for companies to select the correct legal partner for these transactions.